The article is here; the introduction:
Accounts of modern free speech law typically begin in a moment of pragmatic optimism about the value of free speech in a thriving democracy. In the usual story, which Laura Weinrib helpfully calls “the myth of the modern First Amendment,” young progressives like Zechariah Chafee, Felix Frankfurter, Learned Hand, and Harold Laski turn to pragmatist philosophers like William James and Charles Pierce to persuade Justices Holmes and Brandeis of the United States Supreme Court that censorship was antithetical to democratic self-government. Holmes announced that producing more speeches served as the best proof of the truth. Brandeis, supported the word as a guarantor of democracy. Still others believed they had found in free speech a better way to manage dangerous radicalism. Since then, leading commentators have based their accounts of the advent of free speech law on one or another variation of a promising new conception of the function of speech in democracy.
Oddly enough, the opposite is more accurate. The defining characteristic of the moment in which modern free speech law arose was none other than grave new concerns about the relationship between freedom of communication and self-government. When Holmes and Brandeis first gave voice to ideas about free speech in their famous dissents in the fall of 1919 and 1920, keen observers were dealing with a world of distortions and misinformation. Four long years of war propaganda had demonstrated that the speech of the powerful could dangerously destabilize public opinion in apparently democratic societies. Even the return to peace was accompanied by surprising demonstrations of communicative power. The storms of racist and nativist public opinion produced a wave of postwar racist pogroms. Employers’ propaganda crushed postwar strikes in the steel industry and elsewhere. A generation of public relations men abandoned wartime propaganda efforts, entering new fields such as marketing and advertising, firmly convinced from their wartime work that information was extremely susceptible to manipulation and control.
In the early days of modern free speech doctrine, careful observers were beginning to see speech as more than an indispensable foundation for democratic self-government, although it was even that. The word had also become – to adapt Justice Kagan’s iconic phrase from a century later – a weapon for the subversion of democracy.
Early observers of the World War I-era propaganda and disinformation crisis did not treat it as a free speech law issue, or not exactly. In 1919, free speech had just been invented as a legal doctrine; courts would not begin to protect free speech from repressive laws until at least the late 1920s and 1930s. In the absence of a First Amendment to rely on, critics and advocates have not turned to free speech doctrine in the courts, or not only to the doctrine of free speech in the courts, but to the mediating institutions that offered bulwarks against distortions in the domain of public opinion.
Below, I sketch the views of two key participants in the formation of America’s free speech tradition. Walter Lippmann and Roger Baldwin both began their professional lives in the first and second decades of the 20th century on the left of American politics. Both participated in the formation of the modern First Amendment tradition: Lippmann as an interlocutor in the group of progressive pragmatists around Judge Holmes and Baldwin as the founder of the American Civil Liberties Union. Over the course of their long careers, the two men veered towards different positions. Lippmann would become a center-right technocrat and a skeptic of democracy’s ability to rationally manage modern social problems. Baldwin would become the nation’s best-known defender of civil liberties, offering a different kind of skepticism about majority rule, rooted in individual rights versus majoritarian control. But soon after the war, they offered sharp, overlapping accounts of the relationship between the word and what Jürgen Habermas would later call the public sphere. Neither believed that unrestricted communication flows alone could sustain a thriving dominance of public opinion. Instead, everyone came to realize that powerful interests and propaganda campaigns seriously distorted the kind of public information on which democracy depended. Despairing of finding a solution to the information crisis in the modern age, Lippmann turned to neutral expertise in the administrative state. Baldwin, in contrast, believed that the labor movement offered a more promising path, one that could save democratic values by offering a better ecosystem for opinion formation on collective issues. Like many of his generation, Baldwin called this vision industrial democracy.
Both strategies were valuable a century ago and still are today. Much of our difficulty with lies and propaganda in early 21st century public opinion lies precisely in the legitimacy crisis of the administrative state and the collapse of the labor movement.
Baldwin’s strategy for addressing distortion in the public sphere is less well known than Lippmann’s. In some respects, however, it is more promising as a model for the current moment. Unlike Lippmann, Baldwin never made the mistake of imagining that experts could remain outside the information cycles of the societies they claim to govern. Baldwin’s industrial democracy is peculiar because it must be built on institutions that are unashamedly partisan in the struggle for life and the management of information. Unions are not above the fray, they are in it. They stand with their members. They convey information that working-class citizens in a mass society can trust because it is in their interests to do so. At the same time, the role of trade union organizations protects them from certain types of distortions. The institutional interest of unions in preserving the companies with which they bargain ties them to reality. Work, in other worlds, depends on and invests in rival institutions in a given community. For Baldwin, the genius of industrial democracy therefore lies in offering what we might call an endogenous institutional foundation for the formation of public opinion. Industrial democracy is not founded on the impossible Lippmannian goal of transcending conflicting interests through external authority. Instead, industrial democracy places workers’ interests at the center of how information is produced and received in public life.
Lippmann and Baldwin’s stories suggest that our crisis today is not just because new speech technologies like the Internet have offered increasingly dangerous opportunities to distort the public sphere. The distortion preceded our particular technological juncture. Nor are lies and propaganda a major problem in First Amendment doctrine; they have persecuted the democratic public sphere under extremely different doctrinal regimes. Our crisis today is largely due to the fact that key mediating institutions such as the administrative state and the labor movement are in decay or even catastrophic decline.