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Sullivan analyzes reasons for left-right flip-flop on free speech

STANFORD -- Free-speech advocacy has shifted from the political left to the political right, constitutional scholar Kathleen Sullivan told a campus audience on Thursday, Feb. 9, as part of a week-long series of events on "Censorship and Silencing: Practices of Cultural Regulation." The series, sponsored by the Stanford Humanities Center, was part of a statewide series of conferences on the same subject.

Sullivan, a Stanford law professor who is well known for her news media commentary on the Supreme Court, currently is writing a book about free speech and the First Amendment to the Constitution.

"On average," she said, "First Amendment beneficiaries look righter and richer today than they did in earlier eras. Likewise, the advocates of speech regulation have shifted political valence. While the enemies of free speech in the old days were patriotism, law and order, McCarthyism, capitalism and Jim Crow, contemporary advocates of speech regulation come largely from the left of the political spectrum."

The latter include members of the pro-choice movement calling for greater restrictions on abortion protests; feminists advocating regulation of pornography; and civil rights advocates favoring regulation of hate speech directed against groups.

Planned Parenthood of New York City, for instance, ran a full page ad in the New York Times this month with the headline "Words Kill" above a picture of two coffins holding the bodies of Planned Parenthood staff killed by a gunman in Brookline, Mass.

Those advocating no restrictions on free speech now include young Federalist Society students and Randall Terry of the anti-abortion group Operation Rescue, Sullivan said.

Earlier this century, however, it was the political left - socialists, communists, pacifists, trade unionists - who invoked the right to free speech. Most lost their court cases, she said, but their cases produced dissenting opinions that later helped the civil rights movement obtain court decisions removing barriers to marches and demonstrations.

Also, the First Amendment once was invoked to protect leaflets rolling off the poor man's press, whereas now it protects expensive television ads produced for well-financed politicians or corporations, she said.

One explanation for the shift in free speech advocacy might be what has been labeled "ideological drift" - in which people change rhetorical positions on a number of political subjects, depending upon who is in power in government at the moment.

"In this view, the cycle is endlessly capable of reversal and repetition. What goes around comes around," Sullivan said. "With Newt Gingrich and his party in power in Congress and with Republican dominance in state and local government, for example, speech regulation might shift right and free speech advocacy again shift left."

But Sullivan said she finds this explanation lacking, because "savvy" players of politics should want to retain "the cultural rhetoric of free speech so that it would be available to reclaim for themselves when the cycle turned." They would not say, as free speech revisionist Stanley Fish said in his book of the same name, "There's no such thing as free speech, and it's a good thing, too."

The deeper explanation for the shift in the politics of free speech advocacy, she said, is the "current wave of academic free speech revisionism" that is influenced by an earlier wave of "legal realism" during the New Deal.

The revisionists, she said, have attacked the core assumptions of the free speech principle, now that those assumptions finally have become "well settled in court." Those assumptions are that speech is a right and that it demands a presumption of protection from most government regulation but not from private forms of cultural regulation.

Under the prevailing assumptions of the courts, Sullivan said, she has no right to sue if she self-censors in order to get tenure, if her department doesn't give it to her anyway or if a publisher rejects her novel.

"All of these things sanction or deter my speech but they are not censorship, but rather exercises of aesthetic judgment, market forces or just plain taste. Censorship is when the government bans my novel or escrows the proceeds."

The government is very narrowly permitted to restrict speech when it would cause grave harm, she noted. "Preaching white supremacy may not be punished but utterances inciting a lynch mob may. So may falsely crying fire in a crowded theater."

The revisionists, however, challenge this narrow relationship between speech and harm, she said, arguing that speech cannot easily be distinguished from other forms of conduct. Hate speech should be regulated, some of them argue, "even if it causes fright or flight as well as fights," Sullivan said. They argue that "punishing speech only when it provokes a brawl is an archaic, Wild West and distinctly gendered conception of the harms of speech. In the late 20th century, we should know that terror is just as much a social cost as fistfights."

They also argue that speech is "constrained by myriad structures of power before government ever has a chance to censor it," and that speech itself is "an instrument of control. What we read, what we see on television makes us who we are. Women are constructed by pornography in the anti-pornography feminists' view; members of racial minorities are constructed by racist statements."

Borrowing insights from the New Deal, she said, they have pointed out, for example, that the government is never neutral. "If A silences B, we either subsidize A's speech by inaction or subsidize B's speech by regulation," so that government regulation doesn't restrict speech so much as "redistribute" it.

Although she has been called a "mindless libertarian" even by friends on the Stanford law faculty, Sullivan said, she is "sympathetic with many of the new speech regulators' descriptive insights" about power and the role of law. She disagrees, however, with their assumption that the government can redistribute speech in a more neutral way than exists now. There is, she said, "a massive non sequitur at the heart of the revisionists' argument."

Government should be considered "structurally dangerous as a regulator" of the mix of speech, she said, because it has a "structural bias in favor of the prevailing distribution of power" and because, by definition, it "centralizes, standardizes and homogenizes."

"If the problem with the private order is that silence has reduced the diversity of voices, that problem is not necessarily solved by government edict as to which view is acceptable. There is psychological dissonance in commanding people to 'think diversely,' something like ordering someone to 'be relaxed,' ” she said.

Those who argue for speech regulation also often use metaphors comparing it to such government regulation as lowering barriers of entry to markets or resolving collective action problems in markets. But ideas and the speech that flows from them, she argued, are theoretically infinite rather than scarce economic resources. "We do not trade or consume ideas like food or cars; if ideas function as a good at all, it is as Professor Dan Farber and others have observed, as a public good, like clean air or national defense, whose consumption by one does not impair its consumption by others."

During a question-and-answer session, Sullivan was asked if she felt it was possible to make a "nuanced argument" supporting government action to "even the playing field" in such areas as campaign financing, where rich candidates and corporations now dominate mass media.

"It would be one thing if we said, 'Ross Perot, we just don't want to hear you talk about the sucking sound down to Mexico anymore,' ” Sullivan responded. "That would be a regulation of speech. But if we tell him, 'Ross Perot, take the equivalent of the amount of air time you just spent on the sucking sound and give it to your opponent,' that's arguably the regulation of conduct, unless we did it in order to shut him up about the sucking sound."

The government's motive counts, she concluded, but "there may be hard cases in figuring out which is which."



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