Speech Restrictions Aimed at Making Sure People Act in “Right-Thinking” Ways

The comment thread in my “down the memory hole” speech restrictions post reminded me of what I wrote ten years ago about the California Supreme Court’s 1971 decision in Briscoe v. Reader’s Digest (which has since been overruled, based on intervening Supreme Court First Amendment precedent). Here’s my criticism of Briscoe (some paragraph breaks added, and some punctuation adjusted):

[R]evealing Briscoe’s identity eleven years after his crime, the court said, served no “public purpose” and was not “of legitimate public interest”; there was no “reason whatsoever” for it. The plaintiff was “rehabilitated” and had “paid his debt to society.” “[W]e, as right-thinking members of society, should permit him to continue in the path of rectitude rather than throw him back into a life of shame or crime” by revealing his past.

“Ideally, [Briscoe’s] neighbors should recognize his present worth and forget his past life of shame. But men are not so divine as to forgive the past trespasses of others, and plaintiff therefore endeavored to reveal as little as possible of his past life.” And to assist Briscoe in what the court apparently thought was a worthy effort at concealment, the law may bar people from saying things that would interfere with Briscoe’s plans.

Judges are of course entitled to have their own views about which things “right-thinking members of society” should “recognize” and which they should forget. But it seems to me that under the First Amendment members of society have a constitutional right to think things through in their own ways.

And some people do take a view that differs from that of the Briscoe judges: While criminals can change their character, this view asserts, they often don’t. Someone who was willing to fight a gun battle with the police eleven years ago may be more willing than the average person to do something bad today, even if he has led a blameless life since then (something that no court can assure us of, since it may be that he has continued acting violently on occasion, but just hasn’t yet been caught).

Under this ideology, it’s perfectly proper to keep this possibility in mind in one’s dealings with the supposedly “reformed” felon. While the government may want to give him a second chance by releasing him from prison, restoring his right to vote and possess firearms, and even erasing its publicly accessible records related to the conviction, his friends, acquaintances, and business associates are entitled to adopt a different attitude.

Most presumably wouldn’t treat him as a total pariah, but they might use extra caution in dealing with him, especially when it comes to trusting their business welfare or even their physical safety (or that of their children) to his care. And, as Richard Epstein has pointed out, they might use extra caution in dealing with him precisely because he has for the last eleven years hidden this history and denied them the chance to judge him for themselves based on the whole truth about his past. Those who think such concealment is wrong will see it as direct evidence of present bad character (since the concealment was continuing) and not just of past bad character.

Revealing Briscoe’s name, under this view, may have little to do with broad political debates, but it is still of intense and eminently legitimate public concern to one piece of the public: people who know Briscoe, the very same group whose ignorance Briscoe seemed most concerned about preserving. These members of the public would use this information to make the decision, which is probably more important to them than whom they would vote for next November, about whether they could trust Briscoe in their daily dealings….

[W]hich viewpoint about our neighbors’ past crimes is “right-thinking” and which is “wrong-thinking” is the subject of a longstanding moral debate [and may in fact turn on subtle case-by-case judgments that each observer might want to make for himself, based on his own sense of the dangers facing himself and his family]. Surely it is not up to the government to conclude that the latter view is so wrong, that Briscoe’s conviction was so “[il]legitimate” a subject for consideration, that the government can suppress speech that undermines its highly controversial policy of forgive-and-forget.

I can certainly see why all of us might want to suppress “information about [our] remote and forgotten past[s]” in order “to change … others’ definitions of [ourselves].” But in a free speech regime, others’ definitions of me should primarily be molded by their own judgments, rather than by my using legal coercion to keep them in the dark.