The freedom to speak (to yourself) — VOICES for REASON

Stanley Fish, a self-confessed opponent of free speech, reports on a meeting of First Amendment scholars. It provides some fascinating insights into how these scholars think about free speech issues.

One point that I found particularly interesting–or, rather, hair-raising–was the view that the government can regulate the “volume” of speech without undermining freedom of speech.

You may have heard this “volume” metaphor before: supporters of campaign finance regulations frequently use it to suggest that some people’s speech will “drown out” others, the way that a rock band drowns out your voice when you go to place a drink order at a concert. But that’s a false comparison: Rush Limbaugh can pontificate all he wants and that doesn’t prevent me from speaking. (You’re reading this blog, right?)

But the argument Fish describes puts a new twist in that metaphor, and claims that

rather than being speech, the giving and spending of money in elections is conduct that has the effect of aiding speech by ramping up its volume. The idea is that while contributing and spending money may be a means of exercising a right, it is not itself the right, and its regulation can leave the right intact. (You have a right to shout to the world, “I love Mary,” and you may wish to hire a skywriter to proclaim that message, but were an ordinance to forbid or restrict skywriting, your right to express your love will not have been infringed.) Is there political speech without money? Yes. Is money sometimes useful to the expression of speech, including political speech? Yes. Is the useful vehicle the same as the expression it facilitates? No. Is it the money that talks? No. Money doesn’t talk; it aids talk and under O’Brien [United States v. O'Brien (1968)] regulating its expenditure is regulating conduct.

Freedom of speech means that the government is barred from interfering in the communication of ideas. The “volume” argument says the government can interfere as much as it wants, so long as in turning “down the volume,” it doesn’t hit the “mute” button. On that view, the government can stop Fish from writing for the New York Times without violating his freedom of speech, since that would only affect the “volume” of his speech. He could, after all, still yell “Down with free speech!” from his window.

But to give the government control over the “volume” of speech is to give it control over the means of speaking. But all speech requires some material means–whether a soap box, a computer, a radio station, or a patch of grass on which to stand. If spending money to make one’s speech “louder” is “conduct” the government can regulate, then so is using a printing press or stepping onto a soapbox.

Imagine: flickr