Bernstein v. United States Department of Justice: A cryptic interpretation of speech

Brigham Young University Law Review, 2000 by Hanson, Seth

2. The libertarian theory. Free speech as a protection of individual liberty and self-expression According to the libertarian theory, protection of speech is an end in itself, one that secures dignity to each individual by protecting his influence on society through expressive means. In Cohen v. California,'Z Justice Harlan wrote: The constitutional right of free expression . . . put[s] the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.la Similarly, John O. McGinnis, a professor at Cardozo Law School, relied on James Madison and John Locke in support of an interesting property-based view of freedom of speech: Madison states that "[g]overnment is instituted to protect property of every sort," including, in Madison's view, man's property in his "opinions and the free communication of them." Thus, according to the first principles of the father of the Bill of Rights, free speech is not simply or even principally a means for sustaining a particular form of government; to the contrary, protecting free speech and other property rights is the end for which government is constituted. . . . The only legitimate Lockean restrictions on the transmission of information per se are those designed to prevent information from being used to deprive others of their life or property by force or fraud.14

Finally, David A.J. Richards stated: [T]he significance of free expression rests on the central human capacity to create and express symbolic systems, such as speech, writing, pictures, and music . . . Freedom of expression permits and encourages the exercise of these capacities: it supports a mature individual's sovereign autonomy in deciding how to communicate with others . . . . In so doing, it nurtures and sustains the self respect of the mature person. The value of free expression, in this view, rests on its deep relation to self respect arising from autonomous self determination without which the life of the spirit is meager and slavish.ls These sources persuasively argue that individual expression is not protected because it is useful to society but because self expression is essential to the good life. Even though the libertarian and utilitarian theories caution against curtailing individual expression, the Supreme Court has limited freedom of speech in several instances.

B. judicial Limits on Freedom of Speech Freedom of speech controversies represent the classic conflict between the minority and majority. Typically, the majority passes a law restricting what the minority believes is its right to expression. The courts, often regarded as guardians of minority rights, frequently invalidate the will of the majority because it infringes on the minority's freedom of speech. An example of great protection of an individual's right to speak is New York Times r. Sullivan,lb where the Supreme Court held that individuals could legally express opinions about public figures that would normally be illegal under state defamation laws. At the same time, the courts have not endorsed an absolute right to expression. There are several instances where the judiciary, sensitive to majority mores, has refused to protect what the minority argues is its right to expression.