11.

WHAT IS SO BAD ABOUT THE REGULATION OF SPEECH?

It may be necessary, at times, for the government to tinker with the ground rules for how free speech can be exercised. Doing so does not automatically convert the United States into a nation of despotic tyranny, but rather one where sensible citizens are profoundly aware of both the freedoms and responsibilities that come with the privilege of free speech.

NEARLY ALL ECONOMISTS agree that some government involvement in the free market is essential to correct for transaction costs caused by the fidgety operations of the invisible hand. The neoclassical theory of economics is elegant in design but flawed when exposed to the full sweep of irrational human behavior. Absolutism is viewed as a quaint artifact of Adam Smith—a nice theory but a disaster in practice. For this reason, some government intervention is welcomed in the purely economic—goods and services—spheres of life.

But when it comes to the marketplace of ideas, free speech can tolerate absolutely no regulation. Why is that? What makes free speech so antiseptically hands-off? As law professor Jerome Barron presciently understood many decades ago, “the idea of a free marketplace where ideas can compete on their merits has become just as unrealistic in the twentieth century as the economic theory of perfect competition.”⁸²

The externalities and transaction costs that are rampant in the marketplace of ideas are real and just as distorting as those found in marketplaces of pure commerce. In addition to cognitive biases and irrational consumer behavior, the marketplace of ideas is also always vulnerable to those who deliberately pollute the market with false information, exercising the heckler’s veto and conspiring to shut down speech. These are serious and undeniable market failures. They have the same effect as flooding the music and fashion industries with bootleg recordings and counterfeit merchandise—with far more pernicious consequences. A knockoff Fendi purse can at least carry a small iPhone. Floating an “idea” that all Muslims are terrorists, however, is a falsehood with profoundly more dire implications. We recognize the imperfection of markets that cater to consumer goods, yet we idealize the marketplace of ideas as if it functions with total perfection. There is no justification for this disparity and for treating free speech as if it must be exempt from outside interference and beyond the reach of any regulator.

The economist Ronald Coase dedicated his professional life to finding ways to address the problems of transaction costs and externalities in markets. He criticized “intellectuals [who] have shown a tendency to exalt the market for ideas and to depreciate the market for goods.”⁸³ Most people would not elevate the importance of ideas above food, drugs, or their financial investments. Why then should ideas be immune from government regulation when the FDA and the SEC, for instance, set best practices and stand guard over illegal and anti-competitive behavior committed by those who would introduce untested drugs and deceptive investments into the commercial marketplace? Coase wrote in 1977, “There is simply no reason to suppose that for the great mass of people the market for ideas is more important than the market for goods. But even if the market for ideas were more important, it does not follow that the two markets should be treated differently.”⁸⁴

And the government already intervenes in matters related to speech that makes it far less free than absolutists would like. Beginning in 1949 and until 1987, the Federal Communication Commission (FCC), for instance, interceded in order to make sure that consumers had access to complete information on controversial issues—especially when it came to political affairs. The FCC established the “Fairness Doctrine,” which obligated broadcasters to present issues of public interest and to ensure that contrasting viewpoints were properly represented. Yet, during the time that the doctrine remained in force, it inevitably abridged the constitutional guarantees of free speech. The government essentially dictated what content broadcasters were expected to produce and disseminate across the airwaves. The owner of a small-town radio station did not have the right to exercise his or her free speech in whatever manner he or she chose. For instance, if he or she opposed the Vietnam War, a controversial topic to be sure, he or she was still obligated to present contrasting viewpoints. The government’s position was that if one receives a license to broadcast over the public airwaves, the broadcaster had a duty to the public to thoroughly cover the issue rather than presenting a purely partisan treatment. Depriving the broadcast license holder of its First Amendment freedom actually served the public good. And it was consistent with the broader historical objectives of free speech—to inspire public debate by exposing radio listeners to a range of consolidated thinking on the subject.

The Fairness Doctrine treated the airwaves like a supermarket required to stock its shelves with produce and frozen food, canned goods and choice meats—and, yes, some organic food, too, in the interest of consumer choice. A supermarket filled only with sugary breakfast cereal is not in the public interest. The Fairness Doctrine inevitably limited the guarantees of the First Amendment. But so what? There is no point to having free speech if the marketplace in which it is presented is of such disarray and uncoordinated chaos that truth is not to be found there. It may be necessary, at times, for the government to tinker with the ground rules for how free speech can be exercised. Doing so does not automatically convert the United States into a nation of despotic tyranny, but rather one where sensible citizens are made profoundly aware of both the freedoms and responsibilities that come with the privilege of free speech.

The Fairness Doctrine was eventually revoked, which explains why American broadcasters such as Fox News and MSNBC can seemingly curate the day’s news so that it aligns with the views of their partisan listeners. The same is true with talk radio shows where divergent opinions are not part of the programming ethos. The repeal of the Fairness Doctrine also made it possible for the Sinclair Broadcast Group, the largest owner of local television stations in the United States, to mandate in April 2018 that two hundred of its anchors read essentially the same script. All this uniformity was intended to send a message to competing broadcasters and assorted media outlets that they were disseminating “fake news,” and could not be trusted to inform the public. Yet, by hearing identical scripts across the country, the public ended up shortchanged, even though Sinclair’s gambit pleased Donald Trump to no end.⁸⁵

Are we really better off today without the Fairness Doctrine even though, during its time, it placed some restrictions on free speech?

The Fairness Doctrine was not the only instance in which the government retained some control of how freedom of expression is, in practice, exercised. The Supreme Court has held that public schools can function as free speech regulators when a student’s desire to speak at will interferes with the broader obligation of the school to educate its students. In Bethel School District No. 403 v. Fraser, decided in 1986, a student was suspended after delivering a sexually suggestive speech. The First Amendment applies to public schools, but the right cannot be unlimited, otherwise schools would become the Speakers’ Corner for unruly students and lose the authority to compel them to quietly stand in the corner.⁸⁶ In Hazelwood School District v. Kuhlmeier, decided in 1988, a principal removed two articles from a school newspaper. The students’ First Amendment claim was rejected in favor of the principal’s right and obligation to maintain school decorum.⁸⁷ Yes, it was a public school, but not everything in a high school newspaper involves investigative reporting deserving of a Pulitzer. On the scales of censorship and prior restraint, this was hardly a constitutional catastrophe.

And yet, an incident that took place in a small town in Wisconsin in the spring of 2018 was troubling to most and confusing to many. A photo captured outside of a courthouse before the junior prom of a public high school showed more than sixty students engaged in performing a Nazi salute.⁸⁸ After the photo made its rounds through social media and became an Internet sensation, outrage and handwringing echoed even in places where free speech is considered sacrosanct. Many felt that the students—some of whom had already graduated; others were still at the school—should be disciplined. The school district, however, ultimately decided that the students may not have known the implications of their act, and even if they did, they had a First Amendment right to exercise their political beliefs. But there was no evidence that the students were engaged in an act of political expression. As Professor Kathryn Schumaker wrote, “If the salute was not political expression, it does not merit special protections of the First Amendment. There is no constitutional right to be a jerk at school.”⁸⁹

Similarly, public universities are granted leeway to decide what materials the curriculum should include. Students do not possess a First Amendment right to dictate to their colleges what they are required to read. And not having a say in the curriculum is not a violation of free speech. On a campus, the marketplace of ideas is restricted to what the university believes should be taught there. The marketplace is not wide open: It has hours of operation, and not all ideas will receive a hearing. Universities set the terms of how speech is freely exercised, not the students; the university is permitted a role as regulator of speech for outside speakers—which include time, place, and manner restrictions on public lectures held on campus. A university also has the right to prevent a student group from staging a protest in ways that interfere with campus life—and the First Amendment is no worse for wear.

There are permissible restrictions placed on speech and conduct that occurs off-campus as well. The Supreme Court has over many decades upheld the right of cities to impose time, place, and manner restrictions on speech, not because of the content of what is being said or the viewpoint expressed, which would be unconstitutional, but on account of general public welfare considerations. For any number of reasons, including crowd control, safety, and other law enforcement priorities, the government has the right to determine the appropriate time, place, and manner in which a speech or a march should take place. The form and packaging of speech matters. The manner and presentation of the ideas matter, too. If the speaker is inciting his audience in a hostile way, if good manners are beyond his or her control, or if he or she is begging for a fight, then some forfeiture of First Amendment protection should be expected, and the government is not overstepping its regulatory bounds by insisting that the speech take place elsewhere, or not at all.