The article is here; the introduction:
The fact that we have government is largely because we distrust each other: At its best, government establishes and enforces the rule of law to create the conditions that allow all kinds of valuable activity. But just as we need our government to protect us from each other, we also need to protect ourselves from our government. For this reason, the American constitutional tradition tells a story of simultaneous distrust of the people AND of the government.
First Amendment law exemplifies this tradition of mistrust. While courts and commentators have long postulated that speech merits constitutional protection when it has positive value in facilitating democratic self-government, enlightenment, and individual autonomy, the First Amendment tradition also relies on what many call a negative theory of the free speech clause. According to this approach, the Constitution protects speech not so much because it is so valuable, but rather because the government is so dangerous in its ability to abuse its regulatory power. The negative theory of free speech thus holds that the First Amendment is more about our fears of government than our affirmative aspirations of the good. (At the same time, “negative” and “affirmative” theories of the First Amendment are not mutually exclusive, and courts and commentators commonly rely on multiple theories rather than insisting on any one theory of free speech to the exclusion of all others.)
In short, the negative theory of the First Amendment is about a negative value: distrust of government. And since government gives us many reasons to distrust it, negative theory has substantial power.
The many examples of negative theory at work include United States vs. Alvarez, where a divided Supreme Court invalidated the federal Stolen Valor Act, a law that punished intentional falsehoods in receiving military honors. That case required the Court to consider a speaker’s criminal conviction for his self-aggrandizing lie that he had received the Congressional Medal of Honor. Although all parties agreed that that law did not punish or chill any valuable speech, the plurality relied on negative theory – that is, a focus on limiting government rather than protecting worthy speech – to support the First Amendment challenge :
Allowing the government to rule that such speech is a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would support government authority in compiling a list of topics on which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition opposes the idea that we need Oceania’s Ministry of Truth.
It is easier to see the negative theory in action when the Court rejects government regulation of speech as having no affirmative value, as in the case of lies about military service in Álvarez. But negative theory increasingly dominates the contemporary Court’s approach to a wide range of other First Amendment issues.
In Reed vs. Gilbertfor example, the majority relied on the negative theory when it announced that it would apply strict scrutiny All distinctions based on content and speakers, even in the absence of evidence of the government’s malign motivations. Cane struck down, on the basis of the free speech clause, a traffic sign ordinance that prohibited some signs and permitted others in ways counterintuitive enough that all judges found the ordinance failed even on rational grounds. Nonetheless, the majority has announced more broadly that it will apply strict control every time the government has distinguished between speech based on content, without making any effort to explain and distinguish the numerous instances in which the government has long made distinctions based on content without drawing the attention of the (much less suspicious) First Amendment. In contrast, the consensus Justices Breyer and Kagan doubted the wisdom of this sweeping and brilliant rule, describing it as inconsistent with precedent and long-standing practice.
In my view, Breyer and Kagan were right to resist. The negative theory, like any theory of free speech, requires limiting principles that explain when government regulation of expression is constitutionally permissible – and when it is not. Without limits, negative theory always militates against government regulation of speech, even though a completely absolutist approach is both costly and impractical, depriving elected officials of the ability to solve pressing public problems. In other words, negative theory serves as a guardrail for government, but negative theory warrants its own guardrails to prevent the paralysis that accompanies unlimited distrust. We need Both to protect us from the government AND give government the power to serve and protect us.
But When does the government deserve our distrust – or our trust? As the ethicist and political scientist Russell Hardin has observed, our choices to trust or distrust are largely informed by inductive reasoning, that is, by our past experience of the potentially trusted person’s “motivation to look out for the trustor’s interests and his or her competence”. do so.” Trust and distrust are necessarily both episodic and comparative evaluations: whether we trust (or distrust) a specific actor depends largely on when we are asked and with respect to whom. Changes over time and technology can alter the our experience and therefore change the arguments of our distrust. And although our experience often leads us to distrust the government (and the fact that there are many government actors only complicates these evaluations), sometimes our experience leads us to be even more wary of powerful private speakers.
Adding to the complexity of these assessments, a “central problem with trust and distrust is that they are essentially cognitive assessments of the other party’s trustworthiness and can therefore be wrong” through both false positives and false negatives. This leads political scientist Deborah Welch Larson to urge us to “evaluate the epistemological basis of our distrust. Where there is a possibility that the distrust is based on snap judgments or automatic stereotypes, we might try to calculate the other’s interests and evaluate the other’s past behavior.” ‘other. .”
Related to the question of When applying negative theory is the question As use negative theory. For example, courts can use negative theory as a decision rule itself: with this approach, courts apply strict scrutiny to eliminate the government’s speech restriction when they see evidence of unreliable government motives or incompetence, regardless of the lack of fairness of the regulated expression. affirmative value. Or courts may instead use the negative theory as a tie-breaking solution when various free speech theories point in different directions: in these circumstances, one might choose to apply the negative theory as a tie-breaking solution such that closed cases always go against the government. Or courts may instead include the negative theory as one of many factors in a balancing analysis in which they weigh the harm threatened by the contested expression against the risk that the government will apply the law in a biased or clumsy manner.
In this essay I examine the relationship between the negative theory of the First Amendment and government regulation of lying. For descriptive purposes, I highlight the prevalence and power of negative theory in evaluating the constitutionality of laws restricting lying. And as a prescriptive matter, I suggest that the principled application of negative theory – rooted, as it is, in distrust of the potential governance of normative excesses and abuses – requires paying attention to the inductive nature of distrust. More specifically, I propose that the principled application of negative theory requires us to ask, rather than assume, whether the government is regulating in a context where it is particularly dangerous due to its malignancy or clumsiness, or where its discretion in enforcement of the rules is unlimited. In contrast, negative theory should have less power in contexts where government discretion is limited, where we see no evidence of its self-interest or incompetence, or where listeners cannot protect themselves from powerful private speakers enough to distrust speakers. non-governmental parties. even more than the government.