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Joseph Blocher, Free Speech and Justified True Belief, 133 Harv. L. Rev. 439 (2019).

If protection of freedom of speech has something to do with truth-seeking, we ought to acknowledge that “the goal of free speech is not the maximization of truths in the abstract, but rather the development of knowledge.” Supposing this to be so, Joseph Blocher suggests that “First Amendment theory and doctrine” should find its organizing pulse in the idea of grounding: in investigations of what counts as “justified true belief,” not simply “truth alone.” (P. 459.) Epistemology matters.

“Justified true beliefs” emerge within an individual’s own mind, Professor Blocher thinks, in view of particular “interior” dispositions or distinctive “exterior” states of affairs. Interior and exterior elements are sometimes concurrent, sometime interacting, sometimes decisive alone. This account of “true” beliefs does not claim to be philosophically right without doubt. Blocher believes it works well enough, however. Elaboration often shows well-ordered groups of settings, objectives, investigations, and conclusions. Conjunctions—infrastructure, institutions, and the like—come into view, prompting or otherwise disciplining particular forms of speech within which we frame our assertions of justified true belief, and thus also our claims to constitutionally defensible free speech.

Blocher readily acknowledges his debt to important work by Fred Schauer, Paul Horwitz, Robert Post, and others. Blocher’s contribution introduces a distinctive and important structural dynamism. He carefully places his own “grounding” preoccupations adjacent to familiar free speech notions in order to assess what this juxtaposition reveals. Initially, thus, he takes up the much-celebrated image of the “free marketplace of ideas.” It is very easy to associate this notion with a concern for truth, as Justice Holmes himself made clear. Blocher stresses this conjunction, but he nonetheless does not suggest that the “free marketplace” and “justified true belief” are equivalents. Holmes’s writings, we know, frequently endorsed an inarticulate “invisible hand”-like “common sense,” and often expressed an overarching skepticism. Similarly, Blocher maneuvers “justified true belief” near to other often-invoked free speech motivating premises—notions of democracy and autonomy. He perceives more distance, a degree of independence therefore, but he is also able to identify partial congruences at least, signs of some measure of reinforcement.

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Professor Blocher does not court controversy. For the most part, he stresses instances in which justifications of free speech and accounts of institutional infrastructures seem to proceed in defensible parallel. The tolerance that Justice Brennan famously shows for false statements (absent actual malice) in New York Times v. Sullivan, for example, may not serve truth immediately, but it also recognizes that the reliability in general of grounds for statements is often what really matters, not the results in every particular case. Constitutionally protecting journalists or other communicators implicates and encourages (perhaps extends) professional norms, and thus ultimately encourages its own form of discipline. This institutional reading of Sullivan is a familiar one, of course. But there are other dimensions to the case. His general approach, extended a bit, catches them well also.

We might remember that New York Times columnist and First Amendment writer Anthony Lewis walked away from Brennan’s Sullivan opinion. The actual malice test, Lewis thought, opened up too many chances for intensive discovery and other procedural machinations, increasing litigation costs and inducing real self-censorship. We may also recall that Harry Kalven initially declared Brennan’s text to be incomprehensible, moving without explanation from free speech verities to the mandatory replacement of one usual state common law defamation regime with another.

As well, however: Justice Brennan identified the advertisement at issue in Sullivan as one exchange in a “robust, wide-open, and uninhibited” contestation (implicitly, the defamation suit too—he’d written NAACP v. Button the year before). Justice Black, concurring, worriedly described how the Alabama procedure might enable white supremacists, taking advantage of notably open-textured trial processes, to overwhelm careful legal inquiry as such, putting defendants at risk of financial ruin with only a semblance of an actual trial. Brennan returned to “actual malice” a few months later in Garrison v. Louisiana, delicately adverting to happenings in Germany in the period in which the Nazis seized power. Against this backdrop, we realize, Sullivan brings to bear freedom of speech and due process of law and equal protection of law; it brings together both First Amendment and Fourteenth Amendment fundamentals. Brennan’s main moves (the object of Kalven’s concern)—“actual malice,” turning defamation law into a sort of federal common law, the specification of de novo appellate review, and the rest—look to be efforts to buttress Fourteenth Amendment legality, the primordial project of Reconstruction. In Sullivan, judicial recasting of common law builds up journalistic disciplines along the way, reinforcing professional norms working to protect free speech too.

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Tone, feeling, resonance, and the like are sometimes significant elements in free speech, whether independently or alongside claims of truth, assertions of autonomy, or commitments to democracy. Emotional palettes figure as close at hand in many communicative efforts. Professor Blocher does not explore these matters here (he comes closer elsewhere). But it’s easy to see that they fit readily within the workings he deploys. Extremes of feeling may propel ideas or images or other forms of expression into or out of prominence, at greater or lesser velocities. This is one way, at least, that we experience politics or other important aspects of social or cultural environments.

In Hustler Magazine v. Falwell, William Rehnquist seized upon Larry Flynt’s erotic cartoon mockery of minister Jerry Falwell (and his mother!), declaring it to be exemplary effrontery, thorough-going irreverence constitutionally characteristic of free speech protected against civil suit absent false statements of fact.

Generally speaking the law does not regard the intent to inflict emotional distress as one which should receive much solicitude….But in the world of debate about public affairs, many things are done with motives that are less than admirable are protected by the First Amendment. [53]…The appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events—an exploitation often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided. [54]…[G]raphic depictions and satirical cartoons have played a prominent role in political debate. [54]…Respondent contends, however, that the caricature in question here was so “outrageous” as to distinguish it from more traditional political cartoons.…“Outrageousness” in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression. [55]

Hustler depicts emotion as form-generating—as pushing towards simplifications or exaggerations or other intensifications. These devices overwhelm images of nuance or complexity or moderation. Facts—their characteristic modes of representation—push oppositely, accentuate complexity, in this way assert their own plausibility.

Emotion of itself tends to reposition society, politics, or culture—within communicative environments in which strong stylizations and reiterations “rifle,” spinning formulations to maximum force. Such settings may shape propagations of “fundamentals” or other cult-like formulations (we might conclude, following Mary Anne Franks). Ideas acquire pointed directness, maybe especially so outside courts and legal formulations as such, seeming to adherents to license absolutism, harshness near-kin to violence, cousins to the grotesqueries privileged by the Court in Hustler. Much we glimpse now looks to be of a piece. Disciplinary institutions often perceive themselves as precarious, cowed by self-promoting affinity groups pressing members to extremes. Affinity groups sometimes perceive social media platforms as affording huddling shelters or other bolsterings. Platforms at times perceive feelings of affinity groups as not only unified within the given group, but also as fiercely set against other views and groups. These oppositions look like “facts,” useful cues to entrenched popular fissures. Groupings become commodities: market segments, easily spotted, categorized, entrepreneurially valuable.

How do we address circumstances in which enthusiasms look to have occupied the field—whether positive or negative, affinity-driven or institutionally-narcissistic? Our awareness of American law as itself irreducibly layered, if at times disruptively so, is also occasionally rescuing. The interplay of free speech as contest, on the one hand, with concern for  equal protection of the laws on the other, grounded the regime of filters New York Times v. Sullivan engineered to impede the exploitation of trial process by demagogues.

Consciousness of what we don’t know sometimes also engages constitutional thinking. Consider this too-quick sketch: The Fourteenth Amendment premise of equal citizenship governs dealings of citizens with each other. “We the people,” equally sovereigns, equally owe each other duties of allegiance and protection, duties of care. Division at the extreme—“all against all,” stasis—thus acquires constitutional marking, cannot notbe a background matter of legal concern and adjudicative attention. Social media platforms make sorting along political or cultural lines easy. The way they structure their own workings accentuates affinity group extremism. What if these divisions—their clarity, anyway—are in part artifacts, products of the formally encoded devices and algorithms of the platforms themselves, cartoons in effect rather than accurate representations of social and political reality? Platforms might appear to refuse to take seriously as fact statistical capacities to describe overlaps and unsettlings, the simultaneous pertinence of alternate modes of representation. Liability—potentially? Uncertain grounds! Joseph Blocher’s premise presses.

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Cite as: Pat Gudridge, Grounded Free Speech, JOTWELL (April 3, 2020) (reviewing Joseph Blocher, Free Speech and Justified True Belief, 133 Harv. L. Rev. 439 (2019)),