Nobody's fools: The rational audience as first amendment ideal

University of Illinois Law Review

Volumn 2010, Issue 3, 2010, Pages 799-850

  Barnett Lidsky, Lyrissa ^a  

^a Fredric G Levin College of Law   (United States)

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EID: 78650841573     PISSN: 02769948     EISSN: None     Source Type: Journal    
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References (536)

1. McConnell v. FEC, 540 U.S. 93, 258-59 (2003) (Scalia, J., concurring in part and dissenting in part).
2. Although audience research is uncommon in First Amendment cases, it is an important source of evidence in some legal contexts, such as trademark confusion litigation.
3. See RESTATEMENT (THIRD) OF UNFAIR COMPETITION 9§ 23 cmt. c (1995) ("Consumer surveys can be helpful in establishing whether confusion is likely .... [A] survey that reasonably reflects the state of mind of prospective purchasers as they encounter the designations in the marketplace is admissible evidence of the likelihood of confusion."). It is also common in a number of social contexts, such as advertising and jury consulting.
4. See Spike Cramphorn, What Advertising Testing Might Have Been, If We Had Only Known, 44 J. ADVERTISING RES. 170, 175 (2004) ("Partly because of this perceived importance of awareness, focus groups became, and continue to be, a common means of consensus checking reactions to creative ideas.");
5. Rachel Hartje, Comment, A Jury of Your Peers?: How Jury Consulting May Actually Help Trial Lawyers Resolve Constitutional Limitations Imposed on the Selection of Juries, 41 CAL. W. L. REV. 479, 493-94 (2005) ("Jury consultants predominantly rely upon the use of opinion polls to construct a profile of the type of person that will be most receptive to a client's case .... [D]Demographic data is compiled and jury consultants look for specific correlations between desirable traits ....").
6. The Court has never given a precise definition of core speech, but it is clear that it includes political speech at a minimum, and may encompass historical, literary, scientific, and even artistic speech as well.
7. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982) ("[Expression on public issues 'has always rested on the highest rung of the hierarchy of First Amendment values.'"
8. (quoting Carey v. Brown, 447 U.S. 455, 467 (1980)));
9. Thornhill v. Alabama, 310 U.S. 88,101-02 (1940) (asserting that free speech entails "the liberty to discuss publicly and truthfully all matters of public concern," enabling citizens to "cope with the exigencies of [their] period"). Perhaps the most useful definition is that core speech is anything that is not intermediate or low-value speech.
10. See David A. Strauss, Freedom of Speech and the Common-Law Constitution, in ETERNALLY VIGILANT: FREE SPEECH IN THE MODERN ERA 33, 37 (Lee C. Bollinger & Geoffrey R. Stone eds., 2002) (noting that the "default category," for First Amendment purposes, is "high-value speech"). "Speakers need not establish that their speech is political, or artistic, or scientific, or otherwise high value; they need only establish that it is not in one of the low-value categories."
11. Id.
12. For further explanation, see Lyrissa Barnett Lidsky & Thomas F. Cotter, Authorship, Audiences, and Anonymous Speech, 82 NOTRE DAME L. REV. 1537,1581-89 (2007).
13. In fact, these characteristics vary so much from person to person that it makes little sense to speak of any particular speech or text as if it had a single interpretation. For discussion of how assumptions about hypothetical or "implied" readers influence the interpretation of literary texts, see infra Part II. For discussion of how judges' assumptions about readers shape the interpretation of whether a statement is defamatory in a tort context,
14. see Lyrissa Barnett Lidsky, Defamation, Reputation, and the Myth of Community, 71 WASH. L. REV. 1,36-49 (1996).
15. The Court has at times acknowledged that vulnerable audience members may be without judicial recourse against speech protected by the First Amendment. See, e.g., Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) (stating that "so long as the means are peaceful," speech cannot be brought down to the level of the most vulnerable audience member).
16. But cf. FCC v. Pacifica Found., 438 U.S. 726, 748-51 (1978) (allowing channeling of indecent broadcast programming). For more discussion,
17. see infra Part II.
18. See, e.g., Org. for a Better Austin, 402 U.S. at 418 ("It is elementary, of course, that in a case of this kind the courts do not concern themselves with the truth or validity of the publication.").
19. Although these assumptions can be decoupled, this Article will refer to them jointly as the rational audience assumption.
20. This scholarship often criticizes the influence of the marketplace of ideas metaphor in First Amendment scholarship. See, e.g., Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 DUKE LJ. 1, 5;
21. see also discussion infra Part III.A. The marketplace metaphor neatly encapsulates the assumptions of the rational audience ideal, and it remains the dominant metaphor of First Amendment jurisprudence. I have chosen to refer to the rational audience ideal, in addition to the more common marketplace metaphor, because this terminology brings out the often hidden or overlooked assumptions of the marketplace metaphor.
22. See discussion infra Part III.B. I have chosen to use the term behavioral economics here. The body of scholarship that attempts to apply the insights of cognitive psychology is often referred to as "behavioral analysis" or "behavioral economics." The scholarly literature of "behavioral law and economics" is particularly rich.
23. See, e.g., Cass R. Sunstein, Introduction to BEHAVIORAL LAW AND ECONOMICS 1, 1 (Cass R. Sunstein ed., 2000). The common thread in all of this scholarship is an attempt to understand and model how humans make decisions.
24. See discussion of this critique in Part III.B, infra.
25. David Brooks, The Behavioral Revolution, N.Y. TIMES, Oct. 27, 2008, at A31.
26. Id.
27. Derek E. Bambauer, Shopping Badly: Cognitive Biases, Communications, and the Fallacy of the Marketplace of Ideas, 77 U. COLO. L. REV. 649, 651 (2006).
28. In FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 457-58 (2007), Wisconsin Right to Life (WRTL) asserted that it wished to run ads from its general treasury funds criticizing the stance of Wisconsin Senators on the filibustering of judicial nominees. These ads did not urge Wisconsin voters to elect or defeat the Senators; nonetheless, the ads met the definition of "electioneering communications" under section 203 of the BCRA (Bipartisan Campaign Reform Act of 2002), therefore making it a federal crime to air them within thirty days of a federal primary or sixty days of a general election.
29. d. at 460. WRTL sought declaratory and injunctive relief in district court, alleging that the application of the "electioneering communications" provisions to their ads violated the First Amendment.
30. Id.
31. Five Supreme Court Justices-Scalia, Kennedy, Thomas, Alito, and Chief Justice Roberts-ultimately held that the application of the "electioneering communications" provisions to WRTL's ads violated the First Amendment, though they could not agree on a single rationale for this holding.
32. Id. at 457, 481 (principal opinion supported by two votes);
33. id. at 482-83 (Alito, J., concurring);
34. id. at 504 (Scalia, J., concurring in part and concurring in the judgment). Three of the five Justices who upheld the asapplied challenges would have simply overturned the Court's prior holding in McConnell v. FEC, 540 U.S. 93 (2003), with regard to the facial constitutionality of the electioneering communications provisions. Justice Scalia, joined by Justices Kennedy and Thomas, contended that the Court should reject McConnell because it "sets us the unsavory task of separating issue-speech from election-speech with no clear criterion."
35. Wis. Right to Life, 551 U.S. at 484 (Scalia, J., concurring in part and concurring in the judgment). Justice Scalia, while not exactly praising Buckley's "magic words" test for separating issue ads from express advocacy, observed that "[i]f a permissible test short of the magic-words test existed, Buckley would surely have adopted it."
36. Id. at 495. Chief Justice Roberts and Justice Alito, however, would have decided the case on a narrower ground. Chief Justice Roberts wrote that the BCRA's provisions could be constitutionally applied to ads that constitute "express advocacy" and ads that are the "functional equivalent" of express advocacy.
37. Id. at 482 (principal opinion supported by two votes). However, Chief Justice Roberts wrote, "[A] court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."
38. Id. at 469. Applying this test, he determined that the WRTL's ads were not the functional equivalent of express advocacy because they dealt with a genuine issue-the filibuster of judicial nominees-and they "d[id] not mention an election, candidacy, political party, or challenger; and they d[id] not take a position on a candidate's character, qualifications, or fitness for office."
39. Id. at 470.
40. Wis. Right to Life, 551 U.S. at 469-70 (principal opinion supported by two votes) (emphasis added). Chief Justice Roberts and Justice Alito would have adopted a test requiring a court to protect the campaign speech at issue only if "no reasonable interpretation" of it would place it within the unprotected category of "express advocacy" under BCRA section 203.
41. Id. at 470. Justices Scalia, Kennedy, and Thomas believed that even this test failed to draw a bright enough line to protect core political speech.
42. See id. at 492, 499 n.7 (Scalia, J., concurring in part and concurring in the judgment).
43. Id. at 469 (principal opinion supported by two votes).
44. See discussion infra Part II.B
45. For example, the Court's electoral speech jurisprudence is, to put it generously, inconsistent in this assumption about the ability of the voting public to make rational decisions when presented with masses of highly biased information. An excellent article by Daniel Ortiz traces competing models of political decision making that underlie campaign speech decisions.
46. See generally Daniel R. Ortiz, The Engaged and the Inert: Theorizing Political Personality Under the First Amendment, 81 VA. L. REV. 1 (1995). Under one model, the Court treats the citizen as a "civic smarty" who "make[s] highly informed political choices."
47. Id. at 4. Under the other, the Court treats the citizen as a "civic slob" who is "passive and uninformed."
48. Id.; see also Daniel R. Ortiz, The Paradox of Mass Democracy, in RETHINKING THE VOTE: THE POLITICS AND PROSPECTS OF AMERICAN ELECTION REFORM 210, 211 (Ann N. Crigler et al. eds., 2004).
49. See discussion infra Part II.B.
50. See discussion infra Part II.C.
51. Although there is a large and growing body of literature on behavioral economics and cognitive psychology, only two scholars seem to have applied this literature in the First Amendment context.
52. See Bambauer, supra note 13, at 651;
53. Paul Horwitz, Free Speech as Risk Analysis: Heuristics, Biases, and Institutions in the First Amendment, 76 TEMP. L. REV. 1, 6-7 (2003).
54. See, e.g., FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 469 (2007) (Roberts, CJ. & Alito, J., dictum).
55. As opposed to consumers, for example. Although this argument will be explained more fully in Part IV, infra, suffice to say that if citizens are incapable of rational decision making through participation in public discourse, they are equally incapable of self-governance, the hallmark of democracy.
56. See supra notes 6,14-16 and accompanying text.
57. I have attempted previously to illuminate how common law doctrines in defamation cases allow judges to construct the implied audience of allegedly defamatory speech.
58. See Lidsky, supra note 4, at 16-17.
59. Important works in the area include STANLEY FISH, Is THERE A TEXT IN THIS CLASS?: THE AUTHORITY OF INTERPRETIVE COMMUNITIES (1980);
60. WOLFGANG ISER, THE ACT OF READING: A THEORY OF AESTHETIC RESPONSE (Wolfgang Iser & David Henry Wilson trans., Johns Hopkins Univ. Press 1978) (1976) [hereinafter ISER, THE ACT OF READING];
61. WOLFGANG ISER, THE IMPLIED READER: PATTERNS OF COMMUNICATION IN PROSE FICTION FROM BUNYAN TO BECKETT (Wolfgang Iser & David Wilson trans., Johns Hopkins Univ. Press 1974) (1972) [hereinafter ISER, THE IMPLIED READER];
62. HANS ROBERT JAUSS, TOWARD AN AESTHETIC OF RECEPTION (Timothy Bahti trans., Univ. of Minn. Press 1982) (1970). For two good summaries of reader-response criticism as a whole,
63. see TERRY EAGLETON, LITERARY THEORY: AN INTRODUCTION 47-78 (2d ed. 1996)
64. and Lois TYSON, CRITICAL THEORY TODAY: A USER-FRIENDLY GUIDE 153-96 (1999). For application of the insights of reader-response theory to the question of what is fair use in copyright law,
65. see generally Laura A. Heymann, Everything Is Transformative: Fair Use and Reader Response, 31 COLUM. J.L. & ARTS 445 (2008).
66. TYSON, supra note 26, at 162;
67. see also EAGLETON, supra note 26, at 64-65 ("Literary texts do not exist on bookshelves: they are processes of signification materialized only in the practice of reading. For literature to happen, the reader is quite as vital as the author.");
68. ISER, THE IMPLIED READER, supra note 26, at xiii ("The reader discovers the meaning of the text-");
69. TYSON, supra note 26, at 157 ("[A] written text is ... an event that occurs within the reader, whose response is of primary importance in creating the text.").
70. A similar test is used in First Amendment Establishment Clause cases. In Establishment Clause cases, the Supreme Court makes quite explicit its reliance on the "reasonable observer" as the benchmark by which the Court decides if a person would perceive a statute as a state endorsement of religion.
71. In Wallace v. Jaffree, 472 U.S. 38, 76 (1985), Justice O'Connor's concurrence focused on "whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement."
72. See also Zelman v. Simmons-Harris, 536 U.S. 639, 655 (2002) (applying an adult community member to the reasonable objective observer standard);
73. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000) (applying the reasonable observer test to determine if there was a perception of government promotion of religion but specifying that the relevant observer is a high school student).
74. In Elk Grove Unified School District v. Newdow, 542 U.S. 1, 36 (2004), Justice O'Connor described the reasonable observer in the context of the use of the phrase "under God" in the Pledge of Allegiance: or centuries, we have marked important occasions or pronouncements with references to God nd invocations of divine assistance.... The reasonable observer ..., fully aware of our national history and the origins of such practices, would not perceive these acknowledgments as signifying a government endorsement of any specific religion, or even of religion over nonreligion. For criticism of the test,
75. see Susan Hanley Kosse, A Missed Opportunity to Abandon the Reasonable Observer Framework in Sacred Text Cases: McCreary County v. ACLU of Kentucky and Van Orden v. Perry, 4 FIRST AMENDMENT L. REV. 139,141-42 (2006).
76. Jane P. Tompkins, Introduction to Reader-Response Criticism, in READER-RESPONSE CRITICISM: FROM FORMALISM TO POST-STRUCTURALISM ix, xi (Jane P. Tompkins ed., 1980);
77. Jane P. Tompkins, The Reader in History: The Changing Shape of Literary Response, in READER-RESPONSE CRITICISM, supra, at 201,205-06.
78. Stanley E. Fish, Literature in the Reader: Affective Stylistics, in READER-RESPONSE CRITICISM, supra note 29, at 70, 87;
79. Gerald Prince, Introduction to the Study of the Narratee, in READER-RESPONSE CRITICISM, supra note 29, at 7,9.
80. Iser defines "implied reader" as "incorporating] both the prestructuring of the potential meaning by the text, and the reader's actualization of this potential through the reading process." ISER, THE IMPLIED READER, supra note 26, at xii.
81. See id.
82. Id. at 174-75.
83. In determining the public's interpretation of a religious symbol as government sponsored, the court d[id] not ask whether there is any person who could find an endorsement of religion, whether some people may be offended by the display, or whether some reasonable person might think Grand Rapids endorses religion. Instead, we ask whether the reasonable observer would conclude that Grand Rapids endorses religion by allowing Cha bad House's display. Ams. United for Separation of Church & State v. City of Grand Rapids, 980 F.2d 1538, 1544 (6th Cir. 1992).
84. 403 U.S. 15 (1971).
85. Id. at 16.
86. Id.
87. Id. at 21-22.
88. Id. at 16-17.
89. People v. Cohen, 81 CaI. Rptr. 503, 506 (CaI. Dist. Ct. App. 1969) (emphasis added).
90. Cohen, 403 U.S. at 20.
91. The three dissenting Justices first determined that Cohen's behavior "was mainly conduct and little speech," and then determined that it was "well within the sphere of Chaplinsky v. New Hampshire," the Supreme Court's seminal fighting words case.
92. Id. at 27 (Blackmun, J., Burger, CJ., & Black, J., dissenting).
93. Id. at 20 (majority opinion) (emphasis added).
94. Id. Of course, the State need not wait until violence occurs before regulating speech that constitutes incitement.
95. Id.
96. Id. at 23.
97. Id.
98. Id.
99. Id. at 18.
100. Justice Blackmun, joined by Chief Justice Burger and Justice Black in dissent, avoided the problem of audience response by concluding, with very little explanation, that "Cohen's absurd and immature antic, in my view, was mainly conduct and little speech."
101. Id. at 27 (Blackmun, J., dissenting)-
102. As Professor John Jeffries has written, "The institution of the judiciary is peculiarly well suited-in personnel, training, ideology, and institutional structure-to implement the ideals of the First Amendment." John Calvin Jeffries, Jr., Rethinking Prior Restraint, 92 YALE LJ. 409, 427 (1983).
103. See Cohen, 403 U.S. at 20.
104. Some would include only political speech in the definition of core speech. See, e.g., Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. LJ. 1, 29 (1971) (defining "the core of the first amendment" as "speech that is explicitly political").
105. See discussion supra note 3. The Court's distinction between core and non-core speech owes a debt to the work of Alexander Meiklejohn, who defined the core of the First Amendment to include speech of "governing importance." Justice Black's concurrence in the seminal case of New York Times Co. v. Sullivan, for example, cited Meiklejohn for the notion that "[a]n unconditional right to say what one pleases about public affairs is... the minimum guarantee of the First Amendment."
106. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 297 (1964) (Black, J., concurring). Although initially it appeared that Meiklejohn's theory would protect only political speech, he later broadened his theory to include literary, historical, and scientific speech, based on the notion that these types of speech fostered the development of our capacities as citizens to make informed public decisions.
107. ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE 26-28, 76-84, 144-47 (1948). The lines between core and non-core speech can be blurred at the margin, and it is sometimes easier to define core speech by what it is not. Commercial speech, for example, is not core speech; it does not sufficiently advance public discussion on issues of governing importance. But commercial speech receives significant First Amendment protection because it provides important information to citizens in their roles as consumers.
108. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 563-64 & n.6 (1980). Fighting words are not core speech; they do not advance public discussion and are designated as "low-value speech" because of their tendency to bypass cognitive processes and produce immediate violence.
109. See Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). Defining core First Amendment speech creates troublesome issues at the margins, but it is clear, at a minimum, that core speech includes discussions of political, literary, artistic, historical, cultural, and social concerns.
110. See Harry Kalven, Jr., The New York Times Case: A Note on "The Central Meaning of the First Amendment," 1964 SUP. CT. REV. 191, 208 ("The Amendment has a 'central meaning'-a core of protection of speech without which democracy cannot function, without which, in Madison's phrase, 'the censorial power' would be in the Government over the people and not 'in the people over the Government.'");
111. see also Boos v. Barry, 485 U.S. 312, 318 (1988).
112. From the Federalist No. 1: [I]t seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.
113. THE FEDERALIST NO. 1, at 33 (Alexander Hamilton) (Clinton Rossiter ed., 1961). This does not mean that revolutionary leaders were naïve about self-interest. Indeed, concern about the tendency of state legislatures to pander to the parochial concerns of their citizens spurred the adoption of the Constitution in 1787. As Madison noted in The Federalist No. 51, "A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."
114. THE FEDERALIST No. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961);
115. see also SUSAN JACOBY, FREETHINKERS: A HISTORY OF AMERICAN SECULARISM 13 (2004) (noting the "essential rationalism" of the Founders).
116. Thomas Jefferson, First Inaugural Address (Mar. 4,1801), in THE ESSENTIAL JEFFERSON 56 (Jean M. Yarbrough ed., 2006). Jefferson's remarks presumably relate to the controversy over the Sedition Act of 1798 that the Federalist Party had enacted in an attempt to deny Jefferson and his Republican Party victory in the election of 1800. The Act made it a crime to print any false, scandalous, and malicious writings about the federal government, the Congress, or the president. Sedition Act of 1798,1 Stat. 596, 596-97. The Act expired by its own terms in 1801.
117. Id. at 597.
118. Although enforcement of the Act virtually silenced Republican newspapers, Jefferson won the election and the Act was never renewed. GEOFFREY R. STONE, PERILOUS TIMES: FREE SPEECH IN WARTIME FROM THE SEDITION ACT OF 1798 TO THE WAR ON TERRORISM 63-67 (2004). The Court, however, did not declare that the punishment of seditious libel violated the First Amendment until 1964.
119. N.Y. Times Co., 376 U.S. at 276 ("These views reflect a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.").
120. See Thomas Jefferson, First Inaugural Address, in THE ESSENTIAL JEFFERSON, supra note 56, at 56.
121. WOODY HOLTON, UNRULY AMERICANS AND THE ORIGINS OF THE CONSTITUTION 5 (2007) (citing numerous sources);
122. see also RICHARD K. MATTHEWS, IF MEN WERE ANGELS: JAMES MADISON AND THE HEARTLESS EMPIRE OF REASON (1995);
123. MICHAEL J. SANDEL, DEMOCRACY'S DISCONTENT: AMERICA IN SEARCH OF A PUBLIC PHILOSOPHY (1996). Some Americans during this period believed that government should be made more democratic, others that it should be more republican. As Dr. Holton notes, some Americans criticized the state governments prior to 1787 for a "glut" of democracy and others for "a shortage of democracy."
124. See HOLTON, supra, at 163. Some citizens even "embraced the slogan 'VOX POPULI VOX DEI' -'the voice of the people is the voice of God.'"
125. Id. at 164. This was a response, in part, to the limits on the franchise.
126. See id. at 163-64.
127. See id. at 165.
128. For example, the Constitution omitted the rights of citizens to instruct and recall Congressmen. HOLTON, supra note 58, at 199. The Constitution also made each Congressman answerable to a much larger group of constituents than was the case in the state assemblies.
129. See id. at 200-05. The end result was that the constitutional convention "managed to construct a new national government that was considerably less democratic than even the most conservative of the state constitutions."
130. Id. at 211. The Bill of Rights, in turn, counteracted the antidemocratic elements of the Constitution of 1787.
131. Id. at 256-58.
132. 249 U.S. 47, 52 (1919).
133. Id.
134. Id.
135. Id.
136. Id. at 52-53.
137. See David M. Rabban, The Emergence of Modern First Amendment Doctrine, 50 U. CHI. L. REV. 1205, 1317 (1983) (discussing the series of Justices Holmes' and Brandeis' dissents that were the basis for the modern incitement test).
138. See G. Edward White, Justice Holmes and the Modernization of Free Speech Jurisprudence: The Human Dimension, 80 CAL. L. REV. 391, 407-12 (1992).
139. 250 U.S. 616, 628, 630 (1919) (Holmes, J., dissenting).
140. Id. at 616-17 (majority opinion).
141. Id. at 630-31 (Holmes, J., dissenting).
142. G. Edward White, The Canonization of Holmes and Brandeis: Epistemology and Judicial Reputations, 70 N.Y.U. L. REV. 576, 579 n.ll (1995).
143. Abrams, 250 U.S. at 629-30 (Holmes, J., dissenting).
144. Id. at 628-29.
145. Justice Holmes' own faith was less than whole-hearted. See, e.g., Gitlow v. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting) ("The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason.").
146. 274 U.S. 357, 372-80 (1927) (Brandeis, J., concurring). Justice Holmes believed that whether reason would ultimately prevail or not, the principle of free expression prohibited government from attempting to dictate the beliefs of citizens.
147. See Gitlow, 268 U.S. at 673 (Holmes, J., dissenting) ("If in the long run the beliefs expressed in a proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.").
148. For a critique of this idea, see Bork, supra note 53, at 21 (arguing that such speech may be suppressed because it undermines democracy).
149. Vincent Blasi, The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney v. California, 29 WM. & MARY L. REV. 653, 668 (1988).
150. Whitney, 274 U.S. at 378 (Brandeis, J., concurring). The basis of the prosecution was that the party platform of the Communist Labor Party, of which Alicia Whitney was a founding member, advocated "revolutionary class struggle."
151. Id. at 363 (majority opinion).
152. Id. at 376 (Brandeis, J., concurring).
153. See id.
154. Id. at 377.
155. Id.
156. Id. at 377;
157. see also id. at 375-76 ("Believing in the power of reason as applied through public discussion, [the Framers] eschewed silence coerced by law-the argument of force in its worst form.");
158. Vincent Blasi, Free Speech and Good Character: From Milton to Brandeis to the Present, in ETERNALLY VIGILANT, supra note 3, at 61, 78 ("[Justice Brandeis concluded] that we simply have to believe in the power of reason in order to preserve a system of government in which the coercive power of the state does not swamp the individual. If we abandon the faith that reason matters, we are left with a society governed exclusively by force.").
159. See Blasi, supra note 82, at 92.
160. Whitney, 274 U.S. at 377 (Brandeis, J., concurring).
161. As I have explained previously, Justice Brandeis' theory of the First Amendment depends for its operation on the rule of law in a vibrant civil society-what Bernard Lewis has described as "part of society, between the family and the state, in which the mainsprings of association, initiative, and action are voluntary, determined by opinion or interest, or other personal choice." Lyrissa Barnett Lidsky, Brandenburg and the United States' War on Incitement Abroad: Defending a Double Standard, 37 WAKE FOREST L. REV. 1009, 1024 n.102 (2002)
162. (quoting BERNARD LEWIS, WHAT WENT WRONG?: WESTERN IMPACT AND MIDDLE EASTERN RESPONSE 110 (2002));
163. see also Cox v. New Hampshire, 312 U.S. 569, 574 (1941) ("Civil liberties... imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses.").
164. Whitney, 274 U.S. at 375 (Brandeis, J., concurring).
165. Id.
166. Bork, supra note 53, at 23 (observing that free speech law today "grows out of" the dissenting (or concurring) opinions of Justices Holmes and Brandeis).
167. Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942) (defining fighting words as those "likely to provoke the average person to retaliation, and thereby cause a breach of the peace");
168. see also RONALD J. KROTOSZYNSKI, JR. ET AL., THE FIRST AMENDMENT: CASES AND THEORY 93 (2008) ("The fighting-words decisions... involve[] a determination of whether words are abusive or so akin to an assault that they are likely to cause a violent response.").
169. See Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969);
170. see also Texas v. Johnson, 491 U.S. 397, 408 (1989) (stating that First Amendment jurisprudence does not presume "an audience that takes serious offense at particular expression is necessarily likely to disturb the peace").
171. See Brandenburg, 395 U.S. at 448-49.
172. Id. at 447.
173. Brandenburg, for example, involved a Ku Klux Klan member urging other members, some armed, to "[b]ury the niggers."
174. Id. at 445-46, 446 n.l. The Court found the circumstances of the speech, however, evidenced the audience would not respond with violence.
175. Id. at 448-49.
176. Garrison v. Louisiana, 379 U.S. 64, 78 (1964) (requiring knowledge of falsity and reckless disregard on the speaker's part).
177. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 268, 270 (1964).
178. Id. at 270-71, 273.
179. See Texas v. Johnson, 491 U.S. 397, 417-19 (1989).
180. The Court has repeatedly relied on the marketplace metaphor. For a recent example, see New York State Board of Elections v. Lopez Torres, 552 U.S. 196, 208 (2008) (unanimous) ("The First Amendment creates an open marketplace where ideas, most especially political ideas, may compete without government interference. It does not call on the federal courts to manage the market by preventing too many buyers from settling upon a single product." (citation omitted)). As Professor Stanley Ingber has noted, "Content-based restrictions leave the public with an incomplete, and perhaps inaccurate, perception of the social and political universe. Thus, these restrictions can undermine the search for truth and distort the process by which citizens make critical decisions."
181. Stanley Ingber, The First Amendment in Modern Garb: Retaining System Legitimacy, 56 GEO. WASH. L. REV. 187, 191 (1987) (book review).
182. 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
183. Id. (emphasis added).
184. Id. Compare Justice Holmes' assertion with Justice Brandeis' contention that the Framers "believed that freedom to think as you will and to speak as you think are means indispensable to the
185. discovery and spread of political truth...." Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).
186. Dennis v. United States, 341 U.S. 494, 584 (1951) (Douglas, J., dissenting). "When ideas compete in the market for acceptance, full and free discussion exposes the false and they gain few adherents. Full and free discussion even of ideas we hate encourages the testing of our own prejudices and preconceptions."
187. Id.
188. See Abrams, 250 U.S. at 630 (Holmes, J., dissenting).
189. United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943) (Hand, J.);
190. see also Associated Press v. United States, 326 U.S. 1, 20 (1945) ("Th[e First] Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public....").
191. "A legitimate government must assure the right of each individual to participate in and influence governmental decision-making, not because decisions so reached are best, but because only decisions so derived deserve obedience. This perspective of free expression is closely aligned with democratic theory." Ingber, supra note 98, at 220.
192. See, e.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978);
193. Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 191-92 (1973) (Brennan, J., dissenting);
194. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 512 (1969);
195. Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967);
196. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
197. Associated Press, 52 F. Supp. at 372;
198. THOMAS G. KRATTENMAKER & LUCAS A. POWE, JR., REGULATING BROADCAST PROGRAMMING 176 (1994) (describing the case as articulating the principle of "no censorship" and that "individuals are fully capable of choosing what they would hear, read, or believe").
199. See Richard A. Posner, The Speech Market and the Legacy of Schenck, in ETERNALLY VIGILANT, supra note 3, at 121, 142
200. (observing that government regulators are no more able than ordinary consumers to "sort out truth from falsity" in the marketplace of ideas, and that the speech market is "particularly vulnerable to heavy-handed regulation"). If a diverse discourse were the only goal, the Supreme Court would routinely uphold government regulation to enhance the diversity of discourse. Compare Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 258 (1974) (striking a government regulation that required diverse viewpoints in newspapers),
201. with Red Lion Broad. Co. v. FCC, 395 U.S. 367, 375 (1969) (upholding a law requiring radio stations to allow individuals a right to respond to attacks). Moreover, the Supreme Court would also routinely uphold government-mandated disclosure requirements in all speech contexts, since such requirements increase the stock of information available in the marketplace.
202. Compare McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357 (1995)
203. (striking government-mandated disclosure for author of anonymous political pamphlets), with Meese v. Keene, 481 U.S. 465, 485 (1987) (upholding mandatory disclosure for foreign "political propaganda" films).
204. FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY 81-86 (1982) (giving numerous examples, including the persecution of Galileo).
205. Id. at 86.
206. Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 791 (1988).
207. See, e.g., First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 791 n.31 (1978) ("The First Amendment rejects the 'highly paternalistic' approach of statutes... which restrict what the people may hear.");
208. Dale Carpenter, The Antipaternalism Principle in the First Amendment, 37 CREIGHTON L. REV. 579, 582-83 (2004) (noting the dominance of the antipaternalism principle in First Amendment jurisprudence);
209. Daniel A. Farber, Free Speech Without Romance: Public Choice and the First Amendment, 105 HARV. L. REV. 554, 557-58 (1991) ("[T]raditional First Amendment jurisprudence... assumes that people are ordinarily the best judges of their own interests.");
210. Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. & MARY L. REV. 189, 212 (1983) ("The Court has long embraced an 'antipaternalistic' understanding of the first amendment.").
211. Professor Dale Carpenter defines paternalism in the First Amendment context as regulation of speech "justified by the government's belief that speaking or receiving the information in the speech is not in citizens' own best interests." Carpenter, supra note 112, at 582-83.
212. Philosopher Joel Feinberg has written: " [Paternalism] suggests the view that the state stands to its citizens as a parent... stands to his children...." 3 JOEL FEINBERG, HARM TO SELF: THE MORAL LIMITS OF THE CRIMINAL LAW 4 (1986).
213. "When men govern themselves, it is they-and no one else-who must pass judgment upon unwisdom and unfairness and danger. And that means that unwise ideas must have a hearing as well as wise ones...." MEIKLEJOHN, supra note 54, at 27. In the context of commercial speech,
214. see Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756-57 (1976) ("Freedom of speech presupposes a willing speaker. But where a speaker exists, as is the case here, the protection afforded is to the communication, to its source and to its recipients both.... If there is a right to advertise, there is a reciprocal right to receive the advertising....").
215. In Lamont v. Postmaster General, 381 U.S. 301, 307 (1965), the Court upheld the First Amendment rights of citizens to receive political publications sent from abroad.
216. More recently, in Kleindienst v. Mandel, 408 U.S. 753, 762-63 (1972),
217. the Court acknowledged a First Amendment right to "receive information and ideas." And in Procunier v. Martinez, 416 U.S. 396, 408 (1974), in examining the constitutionality of a restriction on prisoners' mail, the Court stated, "Both parties to the correspondence have an interest... and censorship of the communication between them necessarily impinges on the interest of each."
218. See, e.g., Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557, 573 (1995) ("[T]he fundamental rule of protection under the First Amendment [is] that a speaker has the autonomy to choose the content of his own message.").
219. Speaker autonomy underpins many First Amendment doctrines. For example, in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256 (1974),
220. the Court upheld the right of a newspaper to exercise editorial discretion in determining the newspaper's contents. Even in the broadcast context, the government may interfere with speaker autonomy only because, in a medium that requires government allocation to be viable, "the right[s] of the viewers and listeners" are "paramount." Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969).
221. The Court's electoral speech cases also provide a good example of how it veers back and forth between assumptions about the intelligence and sophistication of the audience of campaignrelated speech and information. For more, see the excellent discussion by Raleigh Hannah Levine, The (Un)Informed Electorate: Insights Into the Supreme Court's Electoral Speech Cases, 54 CASE W. RES. L. REV. 225 (2003).
222. In Valentine v. Chrestensen, 316 U.S. 52, 54 (1942), the Court held that the First Amendment does not protect "purely commercial advertising." For additional discussion,
223. see Alex Kozinski & Stuart Banner, The Anti-History and Pre-History of Commercial Speech, 71 TEX. L. REV. 747 (1993).
224. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976) (holding that the First Amendment protects commercial speech).
225. Since 1976, states have attempted, mostly unsuccessfully, to use a "demand reduction" argument to justify bans on advertising in a variety of contexts. See, e.g., Bates v. State Bar of Ariz., 433 U.S. 350, 355, 376 (1977) (ban on lawyer advertising);
226. Carey v. Population Servs. Int'l, 431 U.S. 678, 689, 700 (1977) (ban on contraceptive advertising);
227. Linmark Assoes., Inc. v. Twp. of Willingboro, 431 U.S. 85, 92-94 (1977) (ban on "For Sale" signs). Even after 1976, the Court upheld a ban on casino advertising despite the "reduction of demand for casino gambling."
228. Posadas de P.R. Assoes, v. Tourism Co. of P.R., 478 U.S. 328, 341 (1986). For further discussion, see infra text accompanying notes 121-28.
229. The State made, and the Court rejected, this argument made in Bates v. State Bar of Arizona, 433 U.S. 350, 373-74, 384 (1977). The Court refused to find that price advertising by attorneys was inherently misleading.
230. Id. at 372. Instead, the Court believed the absence of attorney advertisements would leave many consumers poorly equipped to seek legal services.
231. Id. at 370. The Court described advertising as a boon to "informed and reliable decisionmaking."
232. Id. at 364.
233. Va. State Bd. of Pharmacy, 425 U.S. at 765.
234. Id. at 769-70.
235. Id.
236. Id. at 769.
237. Linmark Assocs., Inc. v. Twp. of Willingsboro, 431 U.S. 85, 97 (1977)
238. (quoting Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring)).
239. Id. at 95-97.
240. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 566 (1980). The test for intermediate scrutiny is often called the Central Hudson test, after the case which established it.
241. See id. Commercial speech is considered less valuable than core political speech, and greater regulation is permitted because commercial speech is more "durable" and hardy and more verifiable than core speech. Va. State Bd. of Pharmacy, 425 U.S. at 771 & n.24.
242. See, e.g., United States v. Edge Broad. Co., 509 U.S. 418, 429 (1993) (prohibitions on lottery advertising);
243. Posadas de P.R. Assocs, v. Tourism Co. of P.R., 478 U.S. 328, 342 (1986) (restrictions on casino advertising).
244. Indeed, as Professor Mitchell Berman has noted, "constitutional protection for commercial speech remains mostly predicated on... listener interests." Mitchell N. Berman, Commercial Speech and the Unconstitutional Conditions Doctrine: A Second Look at "The Greater Includes the Lesser," 55 VAND. L. REV. 693, 724 (2002);
245. see also Robert Post, The Constitutional Status of Commercial Speech, 48 UCLA L. REV. 1, 14 (2000) ("Commercial speech doctrine... is sharply audience oriented."). Thus, commercial speech doctrine may be a particularly appropriate realm for application of a construct that focuses on assumptions about audiences latent in the text of judicial opinions.
246. It is more troublesome when the government forces ignorance on its citizens by withholding information than when it forces knowledge on them through disclosure requirements. Mandatory disclosure does not compromise autonomy in the same way as withholding information.
247. 478 U.S. at 328.
248. 517 U.S. 484 (1996).
249. 44 Liquormart, Inc., 517 U.S. at 514;
250. Posadas de P.R. Assocs., 478 U.S. at 332.
251. Posadas de P.R. Assocs., 478 U.S. at 332-33.
252. Id. at 342.
253. Id. at 341 (citation omitted).
254. Id. at 332.
255. Id. at 341.
256. Indeed, the Court later accepted the argument that since Puerto Rico could have banned casino gambling (but chose not to do so), it could take the "lesser" step of banning advertisements promoting casino gambling.
257. Id. at 345-46.
258. Id. at 342.
259. Id. at 341-42.
260. Id. at 343.
261. Id. at 344. In addition, the Court concluded that because Puerto Rico could prohibit gambling altogether, it could certainly take the lesser step of prohibiting advertisements for gambling. Id. at 346 ("[I]t is precisely because the government could have enacted a wholesale prohibition of the underlying conduct that it is permissible for the government to take the less intrusive step of allowing the conduct, but reducing the demand through restrictions on advertising.").
262. Some scholars have pointed out that much advertising is not truly "informational" and does not contribute to rational decision making. See, e.g., Ronald K.L. Collins & David M. Skover, The First Amendment in an Age of Paratroopers, 68 TEX. L. REV. 1087, 1100-03 (1990). But arguably a rational consumer can disaggregate the informational and non-informational components of an advertisement and make his own determination of value. In the realm of core speech, the First Amendment fully protects some works whose value is not purely or even predominantly informational, but protection of core speech is justified by an interest in fostering individual self-fulfillment that is not present in the realm of commercial speech.
263. Cf. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557, 569 (1995) (noting that forms of art like music and songs are protected by the First Amendment).
264. See Posadas de P.R. Assocs., 478 U.S. at 344.
265. See id.
266. There was a five member majority. Justice Brennan was joined in his dissent by Justices Marshall and Blackmun. Id. at 348 (Brennan, J., dissenting). Justice Stevens dissented separately in an opinion joined by Justices Marshall and Blackmun.
267. Id. at 359 (Stevens, J., dissenting).
268. Id. at 358 (Brennan, J., dissenting)
269. (quoting Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 562 (1980)). The dissenters likewise contended that "[t]he First Amendment presupposes that 'people will perceive their own best interests if only they are well enough informed, and... the best means to that end is to open the channels of communication, rather than to close them.'"
270. Id.
271. (quoting Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976)).
272. See id. (Brennan, J., dissenting) ("I would hold that Puerto Rico may not suppress the dissemination of truthful information about entirely lawful activity merely to keep its residents ignorant.");
273. see also Daniel Halberstam, Commercial Speech, Professional Speech, and the Constitutional Status of Social Institutions, 147 U. PA. L. REV. 771, 858 (1999) ("In... Posadas..., the reason for keeping the information from potential consumers was not based on a concern about such information coming from any seller, but simply on a desire to keep such information from the audience as a general matter.").
274. 517 U.S. 484 (1996). In Rubin v. Coors Brewing Co., 514 U.S. 476, 478 (1995), the Court held, 9-0, that a ban on truthful advertising of alcohol content on beer labels violated the First Amendment. The Court rejected the notion that a different constitutional standard should apply to "vice" advertising than to other forms of commercial speech.
275. Id. at 489-90.
276. 44 Liquormart, Inc., 517 U.S. at 489.
277. Id. at 508 (principal opinion supported by four votes);
278. see also id. at 517-18 (Scalia, J., concurring in part and in the judgment) (expressing disapproval of the Central Hudson test as "hav[ing] nothing more than policy intuition to support it," but agreeing that it "would prohibit the challenged regulation");
279. id. at 523 (Thomas, J., concurring in part and in the judgment) ("I do not join the principal opinion's application of the Central Hudson balancing test because I do not believe that such a test should be applied to a restriction of 'commercial' speech, at least when, as here, the asserted interest is one that is to be achieved through keeping would-be recipients of the speech in the dark.");
280. id. at 528-29 (O'Connor, J., with whom Rehnquist, CJ., Souter and Breyer, JJ., join, concurring in the judgment) (concluding that the ban failed Central Hudson).
281. See id. at 501 (principal opinion supported by three votes) (arguing that bans on commercial speech "for reasons unrelated to the preservation of a fair bargaining process" deserved more "rigorous" First Amendment review);
282. id. at 523 (Thomas, J., concurring in part and in the judgment) (arguing that a stricter standard than intermediate scrutiny should apply).
283. See id. at 492-94 (majority opinion).
284. Id. at 528-29 (O'Connor, J., concurring in the judgment) (stating that all parties agree the State's interest was substantial and that the ban directly advanced it, but holding that the ban nonetheless was unconstitutional because it was more extensive than necessary).
285. Id. at 494 (majority opinion).
286. See id. at 504-05 (principal opinion supported by four votes) (emphasis omitted).
287. Id. at 507.
288. Id.
289. Id. at 503 (principal opinion supported by three votes). One can also read in the opinion a respect for the processes of democratic self governance. An increase in taxes on alcoholic beverages will make citizens aware of the State's temperance policy in a way that a ban on price advertising of alcoholic beverages will not.
290. Id. at 507-08 (principal opinion supported by four votes).
291. Id. at 503 (principal opinion supported by three votes). Though Justice Thomas did not sign on to this portion of the principal opinion, he agreed with its sentiments.
292. See id. at 518 (Thomas, J., concurring) (contending that restrictions on speech are "per se illegitimate" when based on an asserted interest "to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace"). Thus, at least four Justices explicitly disavowed paternalism as a basis for regulating commercial speech.
293. Id. (Thomas, J., concurring).
294. Stanley Ingber summarizes these criticisms succinctly as follows: [R]eal world conditions... interfere with the effective operation of the marketplace of ideas: sophisticated and expensive communication technology, monopoly control of the media, access limitations suffered by disfavored or impoverished groups, techniques of behavior manipulation, irrational responses to propaganda, and the arguable nonexistence of objective truth, all conflict with marketplace ideals.
295. Ingber, supra note 8, at 5.
296. Id.
297. Id. at 15.
298. Judge Posner describes the rationality assumption in traditional economics as follows: "The task of economics, so defined, is to explore the implications of assuming that man is a rational maximizer of his ends in life, his satisfactions-what we shall call his 'self-interest.'... Behavior is rational when it conforms to the model of rational choice, whatever the state of mind of the chooser." RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 3 (6th ed. 2003) (internal citation omitted);
299. see also RICHARD H. THALER, QUASI RATIONAL ECONOMICS xiii (1991) ("[A]Il economic models of consumer choice are based on rational behavior...."). Drawing insights from cognitive psychology, behavioral economics questions the rationality assumption and seeks to demonstrate how humans depart from what rationality would dictate in predictable ways.
300. See Sunstein, supra note 9, at 1.
301. See generally Bambauer, supra note 13, at 651;
302. Horwitz, supra note 21, at 4-5.
303. Ingber argues that monopolitistic practices, economies of scale, and an unequal distribution of resources have made it difficult for new ventures to enter the business of mass communications. Because these factors limit entry to the economically advantaged, voices, which might have been heard in the time of the town meeting and pamphleteer, today may be effectively quelled. Ingber, supra note 98, at 188-89.
304. See, e.g., Owen M. Fiss, State Activism and State Censorship, 100 YALE L.J. 2087 (1991).
305. For criticism of the historical argument, see L.A. Powe, Jr., Scholarship and Markets, 56 GEO. WASH. L. REV. 172, 182-84 (1987).
306. Owen M. Fiss, Why the State?, 100 HARV. L. REV. 781, 787 (1987).
307. See id.;
308. see also Ronald J. Krotoszynski, Jr., Into the Woods: Broadcasters, Bureaucrats, and Children's Television Programming, 45 DUKE L.J. 1193, 1211-12 (1996) (observing that "[a] broadcaster's paramount objective is the creation and maintenance of an audience possessed of certain demographic characteristics" and contending that "commercial speech doctrine provides a more analytically sound basis for justifying government regulation of broadcasters").
309. Charles Fried, The New First Amendment Jurisprudence: A Threat to Liberty, 59 U. CHI. L. REV. 225, 250 (1992).
310. See generally CATHARINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW 163-96 (1987).
311. See, e.g., Ingber, supra note 8, at 5 ("Scholarly critics of the marketplace model argue that the model itself suggests a vital need for government regulation of the market.").
312. See Fiss, supra note 172, at 788.
313. It is worth noting that government paternalism directed to increasing the stock of information available to citizens is less troubling than government paternalism restricting the stock of information. Even so, both involve the government choosing for its citizens which information is worthy of their attention, and the government already does this through its agenda-setting role. See discussion infra Part IV.B.3.
314. In the era before government regulation of broadcasting, "[c]ompeting stations broadcast[ed] at the same frequency in the same geographic location," leading to signal interference, and ultimately to chaos. MARC A. FRANKLIN ET AL., MASS MEDIA LAW 76 (7th ed. 2005).
315. As a result, broadcasters sought, and got, federal regulation of the airwaves. JEREMY HARRIS LIPSCHULTZ, FREE EXPRESSION IN THE AGE OF THE INTERNET: SOCIAL AND LEGAL BOUNDARIES 60 (2000) ("Regulation was demanded by existing broadcasters, who wanted to protect their stake in a new industry and did not want new players to interfere with and squelch less powerful signals.").
316. Congress passed the Radio Act of 1927 and then a few years later the Communications Act of 1934. Id. at 61. Both Acts assigned the federal government an active role in allocating the airwaves to serve public ends. Specifically, the Communications Act of 1934 commanded the Federal Communications Commission (FCC) to issue and deny licenses to broadcasters as dictated by "public interest, convenience, or necessity."
317. Id. Pursuant to this authority, the FCC has over the years employed various measures to ensure that a diversity of views is broadcast to the public. One of these measures is the now-defunct fairness doctrine, which required broadcasters to present both sides of controversial issues.
318. Id. at 67. As part of the doctrine, the FCC required any broadcast licensee whose programming contained a "personal attack" on the character or integrity of a person or group to provide them "a reasonable opportunity to respond over the licensee's facilities."
319. Red Lion Broad. Co. v. FCC, 395 U.S. 367, 373-74 (1969).
320. The Court upheld the constitutionality of the FCCs "personal attack" rule in Red Lion Broadcasting Co. v. FCC, and in the process signed off on the notion that the marketplace of ideas might sometimes need a boost from government.
321. Id. at 390. In Red Lion, the Court justified government intervention to promote a diversity of views on the unique characteristics of the broadcast medium, particularly the "scarcity of radio frequencies."
322. Id.
323. Broadcasters accede to certain conditions when they accept a license to use the airwaves and "[t]here is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community."
324. Id. at 389. According to the Court, the rights of broadcasters as speakers are trumped by the rights of "viewers and listeners" to receive information; to hold otherwise would allow broadcasters to use their government-granted license to "monopoliz[e]" the marketplace of ideas.
325. Id. at 390. The Court goes to great pains explaining that its holding is a response to a structural distortion in the marketplace of ideas caused by spectrum scarcity. This, and only this, can justify direct government intervention, even when motivated by a desire to enhance diversity in public discourse.
326. See id.
327. The FCC has argued that the scarcity doctrine no longer justifies the unique application of the First Amendment to broadcast regulations designed to enhance diversity. Syracuse Peace Council, 2 F.C.C.R. 5043, 5058 (1987) ("[T]he dramatic transformation in the telecommunications marketplace provides a basis for the [Supreme] Court to reconsider its application of diminished First Amendment protection to the electronic media.");
328. see also Telecomm. Research & Action Ctr. v. FCC, 801 F.2d 501, 508 (D.C. Cir. 1986) (rejecting the scarcity rationale). The Supreme Court has declined to extend the broadcast paradigm to other media.
329. See Reno v. ACLU, 521 U.S. 844, 868-70 (1997) (declining to apply the Red Lion paradigm to the Internet because it is not characterized by scarcity and has not been historically subject to regulation");
330. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 637 (1994) (declining to extend Red Lion to cable television);
331. Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 258 (1974) (holding unconstitutional a statute granting political candidates the right to reply to attack on their records in newspapers).
332. For a good survey of the Court's jurisprudence in this area, read Christopher S. Yoo, The Rise and Demise of the Technology-Specific Approach to the First Amendment, 91 GEO. LJ. 245 (2003).
333. See, e.g., C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. REV. 964, 965-66 (1978);
334. Jerome A. Barron, Access to the Press-A New First Amendment Right, 80 HARV. L. REV. 1641, 1644-47 (1967);
335. Kent Greenawalt, Free Speech Justifications, 89 COLUM. L. REV. 119, 135 (1989).
336. Pew Research Ctr. for the People & the Press, Candidates' Policy Positions Still Not Widely Known, PEWRESEARCHCENTERPUBLICATIONS, July 16, 2008, http://pewresearch.org/pubs/899/ candidates-policy-positions-still-not-widely- known.
337. PEW RESEARCH CTR. FOR THE PEOPLE & THE PRESS, POLITICAL KNOWLEDGE UPDATE: AWARENESS OF IRAO WAR FATALITIES PLUMMETS 2 (2008), http://people-press. org/reports/pdf/401. pdf.
338. Id. Many Americans are ignorant of basic political information. A 2004 study, for example, revealed that only thirty-one percent of Americans knew that William Rehnquist was Chief Justice of the Supreme Court (though eighty-six percent knew that Dick Cheney was Vice President).
339. Stephen Earl Bennett, Political Ignorance Revisited, PUBLIC OPINION PROS, Dec. 2005, http://www. publicationopinionpros.norc.org/features/2005/dec/ bennett.asp.
340. See Mark Fenster, The Opacity of Transparency, 91 IOWA L. REV. 885, 928 (2006) (citing "[a] vast body of empirical studies demonstrat[ing] citizens' lack of political knowledge," but observing that public choice theory explains why "the public's ignorance is rational").
341. Michael Dimock, Belief that Obama Is Muslim Is Durable, Bipartisan-But Most Likely to Sway Democratic Votes, PEWRESEARCHCENTERPUBLICATIONS, July 15, 2008, http://pewresearch.org/ pubs/898/belief-that-obama-is-muslim-is- bipartisan-but-most-likely-to-sway-democrats.
342. Nicholas D. Kristof, 'With a Few More Brains...,' N.Y. TIMES, Mar. 30, 2008, at WK14.
343. Sam Wang & Sandra Aamodt, Your Brain Lies to You, N.Y. TIMES, June 27, 2008, at A19.
344. Daniel Kahneman et al., Preface to JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES xi, xii (Daniel Kahneman et al. eds., 1982). In addition to cognitive biases, emotion can also cloud humans' abilities to make rational decisions.
345. For further discussion, see Jeremy A. Blumenthal, Emotional Paternalism, 35 FLA. ST. U. L. REV. 1, 3-4 (2007) (discussing the ways in which emotions distort decision making).
346. For these purposes, a decision is rational if it (1) "is based on the decision maker's current assets," monetary as well as psychological; (2) "is based on the possible consequences of the choice"; (3) calculates the likelihood of uncertain consequences "according to the basic rules of probability theory"; and (4) is chosen with regard for the "constraints" of probable outcomes and the "values or satisfactions associated" with those outcomes.
347. REID HASTIE & ROBYN M. DAWES, RATIONAL CHOICE IN AN UNCERTAIN WORLD: THE PSYCHOLOGY OF JUDGMENT AND DECISION MAKING 18 (2001). Based on this definition, research in psychology shows that not only do people often make "patently irrational" decisions, they are "irrational in systematic ways-ways related to their automatic or 'bounded' thinking habits."
348. Id. at 22.
349. See Jeffrey L. Harrison, Happiness, Efficiency, and the Promise of Decisional Equity: From Outcome to Process, 36 PEPP. L. REV. 935, 937 (2009) ("[C]onventional economics is based on behavioral assumptions that have over the last twenty-five years come under increasing scrutiny. Principal among these assumptions is that people are rational and motivated by self-interest alone.").
350. See Herbert A. Simon, Introductory Comment, in ECONOMICS, BOUNDED RATIONALITY AND THE COGNITIVE REVOLUTION 3, 3-7 (Herbert A. Simon et al. eds., 1992).
351. Oliver E. Williamson, The Economics of Organization: The Transaction Cost Approach, 87 AM. J. SOC. 548, 553 (1981
352. ) (citing HERBERT A. SIMON, MODELS OF MAN: SOCIAL AND RATIONAL 198-99 (1957)).
353. See BARRY SCHWARTZ, THE PARADOX OF CHOICE: WHY MORE IS LESS 57 (2004);
354. see also HASTIE & DAWES, supra note 190, at 95 ("People rely on cognitive strategies that 'work' most of the time; are cognitively economical; and are robust in the sense that they are durable in the face of incomplete information, changing situations, and momentary distraction. But most of these strategies also produce signature errors and biases....").
355. Amos Tversky & Daniel Kahneman, The Framing of Decisions and the Psychology of Choice, 211 SCIENCE 453, 453 (1981)
356. [hereinafter Tversky & Kahneman, Framing].
357. This example is used by HASTIE & DAWES, supra note 190, at 303;
358. SCHWARTZ, supra note 194, at 64-65;
359. and Bambauer, supra note 13, at 682.
360. See also Barbara McNeil et al., On the Elicitation of Preferences for Alternative Therapies, 306 NEW ENG. J. MED. 1259, 1259 (1982) (demonstrating that people respond differently to treatments when presented in terms of survival rates versus mortality rates, even where the outcomes of the treatments are exactly the same).
361. For more on the framing effect, see David A. Armor & Shelley E. Taylor, When Predictions Fail: The Dilemma of Unrealistic Optimism, in HEURISTICS AND BIASES: THE PSYCHOLOGY OF INTUITIVE JUDGMENT 334, 334-35 (Thomas Gilovich et al. eds., 2002),
362. or Daniel Kahneman & Amos Tversky, Choices, Values, and Frames, 39 AM. PSYCHOL. 341, 343 (1984).
363. Tversky & Kahneman, Framing, supra note 195, at 453.
364. Id.
365. Id.
366. Id.
367. Id. ("Inconsistent responses to [the] problems... arise from the conjunction of a framing effect with contradictory attitudes toward risks involving gains and losses."). Tversky and Kahneman refused to label the "preference reversals" seen in the differing responses to the two scenarios as "necessarily irrational."
368. Id. at 458. Instead, "[l]ike other intellectual limitations, discussed... under the heading of 'bounded rationality,' the practice of acting on the most readily available frame can sometimes be justified by reference to the mental effort required to explore alternative frames and avoid potential inconsistencies."
369. Id.
370. See Chris Guthrie et al., Inside the Judicial Mind, 86 CORNELL L. REV. 777, 783 n.26 (2001) (listing sources supporting the assertion that experts are subject to framing and other cognitive biases). Tversky and Kahneman note that "[t]he reliance on heuristics and the prevalence of biases are not restricted to laymen. Experienced researchers are also prone to the same biases-when they think intuitively."
371. Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, in JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES, supra note 189, at 3, 18.
372. Bambauer, supra note 13, at 683.
373. Another fallacy in this regard that may have relevance for public policy decisions is the optimism bias that leads humans to consistently view their own odds of avoiding an unpleasant outcome as better than they actually are. Armor & Taylor, supra note 195, at 336. Another fallacy of relevance to public discourse is the herd mentality, in which individuals may go along with what they believe to be the majority consensus. This fallacy helps explain stock market bubbles and crashes.
374. See ROBERT J. SHILLER, IRRATIONAL EXUBERANCE 148-55 (2000) (discussing overconfidence in market behaviors);
375. see also David Hirshleifer & Siew Hong Teoh, Thought and Behavior Contagion in Capital Markets, in HANDBOOK OF FINANCIAL MARKETS: DYNAMICS AND EVOLUTION 1, 1-46 (Thorsten Hens & Klaus Reiner Schenk-Hoppé eds., 2009). Crime may even increase crime in response to high prosecution rates.
376. Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 VA. L. REV. 349, 354 (1997) ("[T]he perception that one's peers will or will not disapprove exerts a much stronger influence than does the threat of a formal sanction on whether a person decides to engage in a range of common offenses....").
377. Tversky & Kahneman, supra note 201, at 11-14.
378. Id.
379. See Timur Kuran & Cass R. Sunstein, Availability Cascades and Risk Regulation, 51 STAN. L. REV. 683, 728 (1999).
380. Troy A. Paredes, Blinded by the Light: Information Overload and Its Consequences for Securities Regulation, 81 WASH. U. L.Q. 417, 456-57 (2003) ("Studies show that by trying to evaluate more information, individuals who are accountable often overinterpret information, focus too much on less relevant information while ignoring key (or 'diagnostic') information, and pay too much attention to conflicting information in anticipation of criticism from the party they are accountable to.").
381. Cass R. Sunstein & Richard H. Thaler, Libertarian Paternalism Is Not an Oxymoron, 70 U. CHI. L. REV. 1159, 1196 (2003);
382. see also GERALD DWORKIN, THE THEORY AND PRACTICE OF AUTONOMY 62, 80 (1988);
383. SCHWARTZ, supra note 194, at 3. This also means that people are easily manipulated by propaganda.
384. Sheena S. Iyengar & Mark R. Lepper, When Choice Is Demotivating: Can One Desire Too Much of a Good Thing?, 79 J. PERSONALITY & Soc. PSYCHOL. 995, 996-97 (2000).
385. Id. at 997.
386. Sheena Iyengar et al., How Much Choice Is Too Much?: Contributions to 401(k) Retirement Plans 9 (Pension Research Council, Working Paper No. 2003-10). Even experienced professionals fall prey to decision paralysis when faced with numerous options.
387. See Bambauer, supra note 13, at 683.
388. See SCHWARTZ, supra note 194, at 1-8. Increased information-in the form of exposure to both sides of an issue-may even lead to increased polarization of attitudes.
389. For additional discussion, see Lee Sigelman & Carol K. Sigelman, Judgments of the Carter-Reagan Debate: The Eyes of the Beholders, 48 PUB. OPINION Q. 624, 624 (1984).
390. Mark Kelman et al., Context-Dependence in Legal Decision Making, 25 J. LEGAL STUD. 287, 290-91 (1996).
391. Id. at 288
392. (citing Itamar Simonson & Amos Tversky, Choice in Context: Tradeoff Contrast and Extremeness Aversion, 29 J. MARKETING RES. 281, 290 (1992)).
393. Id.
394. Charles A. O'Reilly, III, Individuals and Information Overload in Organizations: Is More Necessarily Better?, 23 ACAD. MGMT. J. 684, 685 (1980);
395. see also id. at 692 (confirming these findings). When information is limited, a menu of countless options increases the costs of decisions without increasing the likelihood of accuracy. But when choosers are highly informed, the availability of numerous options decreases the likelihood of error and does not greatly increase decision costs, simply because informed choosers can more easily navigate the menu of options. Sunstein & Thaler, supra note 208, at 1197-98.
396. Bambauer, supra note 13, at 696. As I shall contend in the next section, ideals have uses even if they are never fully realized.
397. See infra Part IV.B.7.
398. Like Bambauer, Paul Horwitz suggests that behavioral analysis may "sweep aside some of the prevailing metaphors of First Amendment theory." Horwitz, supra note 21, at 8-9.
399. See id. at 13.
400. Richard R. Lau & David P. Redlawsk, Advantages and Disadvantages of Cognitive Heuristics in Political Decision Making, 45 AM. J. POL. SCI. 951, 951 (2001).
401. Id.
402. See id. at 952-53.
403. Id. at 952 ("Aggregate opinion can be much more stable and apparently 'rational' than individual opinions, as long as error in individual opinions is assumed to be random." (citation omitted)). The problem, of course, is that cognitive biases lead to non-random errors, and groups are sometimes subject to "group think."
404. See generally JAMES SUROWIECKI, THE WISDOM OF CROWDS: WHY THE MANY ARE SMARTER THAN THE FEW AND HOW COLLECTIVE WISDOM SHAPES BUSINESS, ECONOMIES, SOCIETIES, AND NATIONS 3-22 (2004).
405. See generally SUROWIECKI, supra note 223, at 3-22.
406. Id. at 10.
407. Id. at 14.
408. Id. at 234-35.
409. Id.
410. See supra notes 203-04 and accompanying text.
411. 551 U.S. 449 (2007).
412. For a full discussion of the case's holding and the disagreements amongst the Justices in the majority, see supra note 14. Of course the refusal to apply an actual-effect test may result in the suppression of speech in some instances. In Gitlow v. New York, the Court affirmed a conviction for advocacy of criminal anarchy where the defendant published a Manifesto for the Left Wing of the Socialist Party under the incitement principle. The Court found "no evidence of any effect resulting from the publication and circulation of the Manifesto."
413. Gitlow v. New York, 268 U.S. 652, 656 (1925). Yet, it reasoned "the immediate danger is none the less real and substantial, because the effect of a given utterance cannot be accurately foreseen."
414. Id. at 669. The Court also wrote: "A single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration."
415. Id.
416. Wis. Right to Life, Inc., 551 U.S. at 469 (principal opinion supported by two votes). Chief Justice Roberts and Justice Alito would have adopted a test requiring a court to protect the campaign speech at issue only if "no reasonable interpretation" of it would place it within the unprotected category of "express advocacy" under BCRA § 203.
417. Id. at 469-70. Justices Scalia, Kennedy, and Thomas believed that even this test failed to draw a bright enough line to protect core political speech.
418. Id. at 492 (Scalia, J., concurring in part and concurring in the judgment).
419. Id. at 469 (principal opinion supported by two votes) (emphasis added)
420. (citing Buckley v. Valeo, 424 U.S. 1, 43 (1976) (per curiam)).
421. Id.
422. See RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 23 cmt. c (1995) ("Consumer surveys can be helpful in establishing whether confusion is likely.");
423. see also, e.g., Sally Beauty Co. v. Beautyco, Inc., 304 F.3d 964, 974 (10th Cir. 2002) ("[E]vidence [of actual confusion] may be introduced through surveys, although their evidentiary value depends on the methodology and questions asked.");
424. CAE, Inc. v. Clean Air Eng'g, Inc., 267 F.3d 660, 685 (7th Cir. 2001) ("[E]vidence of actual confusion, if available, is entitled to substantial weight in the likelihood of confusion analysis....");
425. Rust Env't & Infrastructure, Inc. v. Teunissen, 131 F.3d 1210, 1218 (7th Cir. 1997) ("Actual confusion can be shown by either direct evidence or by survey evidence.");
426. Michael J. Allen, The Role of Actual Confusion Evidence in Trademark Infringement Litigation, 83 TRADEMARK REP. 267, 267-68 (1993) ("[M]ost courts agree that actual confusion is one of the most important factors, if not the most important factor, considered in determining the likelihood of confusion....").
427. 15 U.S.C. § 1114(1)(a) (2006).
428. McGregor-Doniger, Inc. v. Drizzle, Inc., 599 F.2d 1126, 1130 (2d Cir. 1979). Although the Second Circuit references the ordinarily prudent purchaser, the very same opinion states that it is relevant that purchasers may be "unknowledgeable" and "unsophisticated" and that the "purchasing public must be credited with only a modicum of intelligence."
429. Id. at 1138
430. (quoting Carnation Co. v. Cal. Growers Wineries, 97 F.2d 80, 81 (C.C.P.A. 1938)).
431. Similarly, courts have also noted that the test depends on whether a person "with a not very definite or clear recollection as to the real trade-mark, is likely to become confused or misled." Northam Warren Corp. v. Universal Cosmetic Co., 18 F.2d 774, 775 (7th Cir. 1927).
432. Even so, the court need not apply the likelihood of confusion test "merely to protect the most gullible fringe of the consuming public." Indianapolis Colts, Inc. v. Metro. Balt. Football Club Ltd., 34 F.3d 410, 414 (7th Cir. 1994).
433. Colburn v. Puritan Mills, Inc., 108 F.2d 377, 378 (7th Cir. 1939).
434. Polaroid Corp. v. Polaroid Elecs. Corp., 287 F.2d 492, 495 (2d Cir. 1961). These factors are called the Polaroid formula.
435. See also PAUL GOLDSTEIN & R. ANTHONY REESE, COPYRIGHT, PATENT, TRADEMARK AND RELATED STATE DOCTRINES: CASES AND MATERIALS ON THE LAW OF INTELLECTUAL PROPERTY 364 (6th ed. 2008) (noting, however, that "[e]ach circuit has adopted its own factors," though the tests tend to overlap).
436. Polaroid Corp., 287 F.2d at 495.
437. Indianapolis Colts, Inc., 34 F.3d at 414.
438. Id. at 415.
439. See id. at 415-16 (noting a more fundamental problem common to consumer survey research; namely, "that people are more careful when they are laying out their money than when they are answering questions").
440. See Gen. Mills, Inc. v. Kellogg Co., 824 F.2d 622, 626 (8th Cir. 1987).
441. See Harvey S. Perlman, The Restatement of the Law of Unfair Competition: A Work in Progress, 80 TRADEMARK REP. 461, 472-73 (1990).
442. It is worth mentioning here that First Amendment jurisprudence dealing with religious freedoms employs a reasonable observer test, which again rejects the use of empirical data about the real audience. See, e.g., Van Orden v. Perry, 545 U.S. 677, 682-83 (2005).
443. See Lisa P. Ramsey, Increasing First Amendment Scrutiny of Trademark Law, 61 SMU L. REV. 381, 417 (2008).
444. See Susan M. Gilles, Taking First Amendment Procedure Seriously: An Analysis of Process in Libel Litigation, 58 OHIO ST. L.J. 1753, 1789 (1998) ("[I]t is now clear that chill on speakers comes... from concern about the costs of litigation.");
445. Lyrissa Barnett Lidsky, Silencing John Doe: Defamation and Discourse in Cyberspace, 49 DUKE L.J. 855, 890-92 (2000) (discussing the chilling effect of protracted litigation on free speech).
446. Both autonomy and democratic self-governance are pillars of First Amendment theory, though they are offered to justify the protection of expression generally, rather than the embrace of rationalism and the preference for unrestricted entrance into the marketplace of ideas.
447. See supra notes 16, 105 and accompanying text.
448. See supra Part IV.B.2-3.
449. Doubtless this is part of the reason that contract law presumes that parties to a contract are capable of making rational decisions about their own ends, that tort law assumes people generally are capable of behaving reasonably, and that the rationality assumption pervades law generally. "Many regulatory schemes, including the federal securities laws, assume that people, at least for the most part, are rational. Consequently, people simply need more information to better evaluate their options and make better decisions. If this is the case, more information is always better than less." Paredes, supra note 207, at 435.
450. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776);
451. see also Owen M. Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405, 1407 (1986) (discussing the process of "collective self-determination").
452. Even where the Constitution imposes restraints on majoritarian decision making, deference to majority will is the rule, not the exception. Yet deference to majority will make little sense if one assumes that citizens are pervasively and ineluctably irrational.
453. See supra note 54 and accompanying text.
454. See, e.g., First Nat'l Bank of Boston v. Belotti, 435 U.S. 765, 783 (1978) ("[T]he Court's decisions involving corporations in the business of communication or entertainment are based not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas.");
455. Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969).
456. As Robert Post has pointed out, First Amendment doctrine clears a space for "a process of critical interaction." ROBERT C. POST, CONSTITUTIONAL DOMAINS: DEMOCRACY, COMMUNITY, MANAGEMENT 143 (1995).
457. Participation in discourse arguably fosters citizens' abilities to make rational decisions, not through the intervention of an "enlightened elite." "Rather, the people educate themselves" through the "exchange of opinions, refereed by the public." Bernard Manin, On Legitimacy and Political Deliberation, in 4 LIBERALISM: CRITICAL CONCEPTS IN POLITICAL THEORY 247, 261 (G.W.Smith ed., 2002).
458. The anti-paternalism of First Amendment doctrine heightens the need for development of critical faculties, making education a critical component of participation in public discourse.
459. See RONALD J. KROTOSZYNSKI, JR., THE FIRST AMENDMENT IN CROSS-CULTURAL PERSPECTIVE: A COMPARATIVE LEGAL ANALYSIS OF THE FREEDOM OF SPEECH 14-15, 170 (2006) (discussing the importance of education to democratic self-governance). This was a principle forwarded by Thomas Jefferson in a letter to John Tyler in 1810, in which he contended that "no republic can maintain itself in strength" without a program of "general education, to enable every man to judge for himself what will secure or endanger his freedom."
460. Letter from Thomas Jefferson to John Tyler (May 26, 1810), in 12 THE WRITINGS OF THOMAS JEFFERSON 393 (Andrew A. Lipscomb & Albert Ellery Bergh eds., 1903).
461. See C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 47-50 (1989).
462. Cohen v. California, 403 U.S. 15, 24 (1971) (emphasis added).
463. See BAKER, supra note 257, at 47-50 ("[T]he practices of democratic decision making or welfare maximization [and utilitarianism] can often be understood as properly implementing equal respect for persons as autonomous agents.");
464. Mark G. Yudof, In Search of a Free Speech Principle, 82 MICH. L. REV. 680, 695 (1984) (book review) ("[T]he dignity argument merges with the normative argument from democracy.").
465. See BAKER, supra note 257, at 47-50.
466. See Laura A. Heymann, The Public's Domain in Trademark Law: A First Amendment Theory of the Consumer, 43 GA. L. REV. 651, 660 (2009) (observing that a Kantian theory of autonomy values choices because it "is personal to the individual," whereas a Millian theory "takes the conse-quentialist view that society should prefer autonomy because it leads to the overall well-being of society").
467. Greenawalt, supra note 181, at 150-52. But cf. Yudof, supra note 259, at 695 (arguing that people gain just as much dignity from economic factors as from expression of ideas).
468. 418 U.S. 405 (1974).
469. Id. at 406-07.
470. Id. at 408.
471. Id. at 415.
472. For extensive discussion of the constitutional privilege for opinion, see generally Lidsky, supra note 247.
473. 398 U.S. 6 (1970).
474. Id. at 7.
475. Id. at 14.
476. Id.
477. Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 (1990) (finding that existing doctrine, including Bresler, gives breathing space to free expression "without the creation of an artificial dichotomy between 'opinion' and fact").
478. (1837) 132 Eng. Rep. 490 (C.C.P.).
479. Id. at 493 (Tindal, CJ.).
480. Jeffrey J. Rachlinski, Misunderstanding Ability, Misallocating Responsibility, 68 BROOK. L. REV. 1055, 1057, 1063-67 (2003) ("Because recent research suggests that people commonly overestimate cognitive abilities, the application of the reasonable person test might undermine the deterrence function and produce results wholly inconsistent with ordinary notions of justice and fairness.").
481. Id. at 1090-91.
482. See, e.g., Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 563 (1980) ("The government may ban forms of communication more likely to deceive the public than to inform it....").
483. See MANFRED WEIDHORN, THE PERSON OF THE MILLENNIUM: THE UNIOUE IMPACT OF GALILEO ON WORLD HISTORY 155 (2005).
484. See generally MAURICE A. FINOCCHIARO, THE GALILEO AFFAIR: A DOCUMENTARY HISTORY (Maurice A. Finocchiaro ed. & trans., 1989).
485. FINOCCHIARO, supra note 278, at 36-37.
486. Id. at 35-39.
487. Id. at 38-39.
488. Sedition Act of 1798, 1 Stat. 596, 596-97;
489. see also N.Y. Times Co. v. Sullivan, 376 U.S. 254, 276 (1964) ("Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history." (footnote omitted)).
490. See Horwitz, supra note 21, at 36-37.
491. MURRAY B. LEVIN, POLITICAL HYSTERIA IN AMERICA: THE DEMOCRATIC CAPACITY FOR REPRESSION 29 (1971).
492. KROTOSZYNSKI ET AL., supra note 89, at 43-44;
493. see also PATRICIA CAYO SEXTON, THE WAR ON LABOR AND THE LEFT: UNDERSTANDING AMERICA'S UNIOUE CONSERVATISM 135 (1991).
494. KROTOSZYNSKI ET AL., supra note 89, at 44.
495. See Whitney v. California, 274 U.S. 357, 363, 372 (1927) (affirming criminal syndicalism con viction for organizing and being a member of the Communist Labor Party of America, which advo cated the "overthrow of capitalist rule").
496. Id. at 379 (Brandeis, J., concurring). The defendant in Whitney helped organize the Com munist Labor Party of California, whose constitution advocated overthrow of the government.
497. Id. at 363 (majority opinion).
498. See supra Part III.B.
499. BERNARD GROFMAN ET AL., MINORITY REPRESENTATION AND THE QUEST FOR VOTING EQUALITY 8 (1992) (noting that in the 1890s states used constitutional conventions to adopt means to disenfranchise black voters). "Even as late as 1960, voter registration rates among whites in the South were more than twice those of blacks...."
500. Id. at 1.
501. W. Sherman Rogers, The Black Quest for Economic Liberty: Legal, Historical and Related Considerations, 48 How. LJ. 1, 74 n.581 (2004) (noting the "desire to prevent blacks from voting" in imposing literacy tests). States also used literacy tests to disenfranchise other groups of voters thought to be incapable of voting intelligently, such as recent immigrants.
502. For an extended discussion, see Levine, supra note 116, at 239-40.
503. ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES 142 (2000). The states also used residency requirements and poll taxes to con strict the franchise.
504. See Levine, supra note 116, at 237.
505. See Voting Rights Act Amendments of 1970, Pub. L. No. 91-285, 84 Stat. 314, 314-19. The nationwide ban originally was in place for five years.
506. See id. at 315. In 1975, Congress made the ban permanent.
507. See Voting Rights Act Amendments of 1975, Pub. L. No. 94-73, S $102, 89 Stat. 400, 400 (codified as amended at 42 U.S.C. S 1973aa (2006)).
508. Daniel S. Goldman, Note, The Modern-Day Literacy Test?: Felon Disenfranchisement and Race Discrimination, 57 STAN. L. REV. 611, 616 (2004). This disproportion was a natural result of the systematic deprivation of educational opportunities to black Americans.
509. Id. at 619.
510. Williams v. Mississippi, 170 U.S. 213, 221, 225 (1898).
511. Id. at 222.
512. Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 51 (1959). However, the Court has also recognized that such tests can be applied in a manner that violates a citizen's right to equal protection of the laws.
513. Id. at 53-54.
514. Id. at 53.
515. Lori Robertson, In Control, AM. JOURNALISM REV., Feb.-Mar. 2005, at 26, 28 (citation omit ted).
516. MALCOLM MITCHELL, PROPAGANDA, POLLS, AND PUBLIC OPINION: ARE THE PEOPLE MANIPULATED? 46 (2d ed. 1977).
517. Robertson, supra note 299, at 30 (discussing the fact that New York Times reporters were banned from then Vice President Dick Cheney's campaign plane as punishment for unfavorable cov erage).
518. See Ann Scott Tyson, Hundreds of Photos of Caskets Released-Pentagon Action Is in Re sponse to Lawsuit, WASH. POST, Apr. 29, 2005, at A1O (discussing the Bush administration's policy banning photographs and videotapes of coffins at Dover Air Force Base).
519. Robert Pear, Buying of News by Bush's Aides Is Ruled Illegal, N.Y. TIMES, Oct. 1, 2005, at Al.
520. Id.
521. Id.
522. CHALMERS JOHNSON, THE SORROWS OF EMPIRE: MILITARISM, SECRECY, AND THE END OF THE REPUBLIC 229-30 (2004);
523. PAUL RUTHERFORD, WEAPONS OF MASS PERSUASION: MARKETING THE WAR AGAINST IRAO 196 (2004).
524. See Murray Waas, Cheney "Authorized" Libby to Leak Classified Information, NAT'L J., Feb. 9, 2006, http://www.nationaljournal.com/about/ njweekly/stories/2006/0209njl.htm.
525. David Barstow, Pentagon Suspends Briefings for Analysts, N.Y. TIMES, Apr. 26, 2008, at A15.
526. See Potter Stewart, "Or of the Press," 26 HASTINGS LJ. 631, 634 (1975).
527. Five Years On: Media's Role in Iraq, CHRISTIAN Sei. MONITOR, Mar. 19, 2008, at 8 ("The press already stands accused of not doing enough before the war to probe the Bush administration's arguments for the invasion, whether it was Saddam Hussein's alleged weapons or the prospects of im planting democracy in Iraq.");
528. see also SCOTT MCCLELLAN, WHAT HAPPENED: INSIDE THE BUSH WHITE HOUSE AND WASHINGTON'S CULTURE OF DECEPTION 125 (2008) (criticizing media for accept ing President Bush's propaganda without enough investigation);
529. Sherry Ricchiardi, Whatever Hap pened to Iraq?: How the Media Lost Interest in a Long-Running War with No End in Sight, AM. JOURNALISM REV. June-July 2008, at 20 (criticizing the lack of coverage after the initial phase of the Iraq War). On the other hand, the Bush administration criticized the media for being unduly negative in its coverage of the war in Iraq.
530. See Michael O'Hanlon, Misplaced Blame, WASH. TIMES, Apr. 11, 2006, at A14.
531. See, e.g., Steve Fainaru, Cutting Costs, Bending Rules, and a Trail of Broken Lives: Ambush in Iraq Last November Left Four Americans Missing and a String of Questions About the Firm They Worked For, WASH. POST, July 29, 2007, at AOl;
532. Anthony Shadid, In Revival of Najaf Lessons for a New Iraq: Shiite Clergy Build a Spiritual Capital, WASH. POST, Dec. 10, 2003, at AOl.
533. See, e.g., Tribune Will Cut Hundreds of Jobs as Businesses Weaken, N.Y. TIMES, Feb. 14, 2008, at C9.
534. McConnell v. FEC, 540 U.S. 93, 258 (2003) (Scalia, J., concurring in part and dissenting in part).
535. John Updike, All Things Considered: Testing the Limits of What I Know and What I Feel (NPR radio broadcast Apr. 18, 2005), available at http://thisibelieve.org/essay/14/ ("To guarantee the individual maximum freedom within a social frame of minimal laws ensures-if not happiness-its hopeful pursuit.").
536. Id.