I don’t have time to respond to Jack Balkin’s very interesting post on freedom of speech and the desireability of public universities, but if you would like to know what the brightest minds on the left are thinking on such topics, it’s a good place to start.
UPDATE: Balkin says the purpose of freedom of expression is to “promote democratic culture,” which means that affirmative government interventions to promote democratic culture can enhance the free speech principle, even when those interventions involve content-based speech regulations, as is the case with public unviersities. I, and I think the First Amendment, have a more modest view of freedom of expression, which is to limit the government’s power to engage in self-serving, antisocial behavior. This is not a direct response to Balkin, but here is what I have written elsewhere on the purpose of the First Amendment and its restriction on the government’s ability to regulate expression:
The alternative to allowing an unregulated speech marketplace is permitting government censorship, leaving “the government in control of all the institutions of culture, the great censor and director of which thoughts are good for us.” For good reason, civil libertarians believe that the government cannot be trusted with the power to establish an official orthodoxy on any issue, cultural or political, or to ensure the “fairness” of political debate. As one scholar puts it, “freedom of speech is based in large part on a distrust of the ability of government to make the necessary distinctions, a distrust of government determinations of truth and falsity, an appreciation of the fallibility of political leaders, and a somewhat deeper distrust of governmental power in a more general sense.”
Freedom of expression is necessary to prevent government from entrenching itself and expanding its power at the expense of the public. As federal court of appeals judge Frank Easterbrook wrote in an opinion striking down an antipornography statute inspired by academic feminists, “free speech has been on balance an ally of those seeking change. Governments that want stasis start by restricting speech. . . . Without a strong guarantee of freedom of speech, there is no effective right to challenge what is.” First Amendment scholar John McGinnis likewise notes that government officials have a natural tendency to suppress speech antithetical to their interests. As McGinnis notes, the free flow of information related to politics and culture threatens “government hierarchies both by rearranging coalitions and revealing facts that will prompt political action.”
The framers of the American Constitution also recognized that government is in constant danger of capture by factions that desire to use the government for their own private ends, a phenomenon known in modern academic literature as “rent-seeking.” The Constitution and Bill of Rights were intended to establish a system of government that limits such rent-seeking. The First Amendment’s protection of freedom of expression is particularly important in this regard. The founders believed that once in power, factions would exploit any government authority to regulate speech in self-serving ways. The founders’ insights have been confirmed by experience around the world and by modern research into human political behavior by economists and evolutionary psychologists. Permitting government regulation of information relating to politics or culture would come at a very high price to society.
Contrary to the insinuations of some critics, then, all but the most starry-eyed civil libertarians recognize that freedom of expression can have many negative side effects, or, as economists put it, negative externalities. But civil libertarians are also familiar with the voracious lust for power and pursuit of self-interest endemic in politicians and their rent-seeking allies. Civil libertarians make the cold calculus that the negative externalities caused by government regulation are likely to outweigh any negative externalities that arise from freedom of expression. Or, more simply put, civil libertarians believe that allowing politicians to decide the scope of freedom of speech is simply more dangerous than any damage the speech itself may cause. This is especially true in the United States. In contrast to more statist social systems, the United States has largely maintained a Tocquevillian nature, where political and cultural innovations arise from the grass roots, not from the government. Freedom of expression is therefore necessary for economic and cultural progress.
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