Free speech is not only a matter of law; there are also concerns of society, culture, and politics. Truly free speech, of course, doesn’t exist. We are not allowed to say whatever we want whenever we want, a safeguard against slander and physical distress. But the United States is still remarkably loose in the regulations of speech, and Americans seem content to let the anti-democratic, anti-populist check of the judicial branch set its boundaries. This raises the generalization: is more speech better speech, with opinions short of slander out in the open; or should there an acceptance of greater regulation, so as to defend public virtue?
If the latter, then whatever the content given the word “liberty” in the Fourteenth Amendment, it is a liberty that may be abridged with due process of law.
There are roughly three types of law, each with its own set of interpretive difficulties:
– Constitutional: the basis of government at the federal and state level, with explicit and implicit governmental powers and individual rights
– Federal and state statute: legislatively enacted
– Common: judge-made law that may evolve, rooted in the English method of determining contracts and liability
Common is the lowest and all are trumped by constitutional law. So why should nine unelected justices have the power to overturn popular and legislative decisions? Does “judicial review” have an attractive middle ground between legislative supremacy and judicial supremacy to allow a self-governing people to freely decide problems, assuming all sides can be heard?
Perhaps greater regulation need not involve the courts in most circumstances. Judicial restraint can express a democratic ideal in that it recognizes many of the problems with First Amendment law are best solved by local officials who should be permitted to exercise their good judgment, rooted in the wisdoms of their particular communities so long as minority rights are in effect. Generally, the courts would step in when there is a block in local processes, such as in desegregation and voting rights a half century ago. But courts would not step in where the judicial process was in effect and both “sides” were being heard, as in Roe v. Wade.
If there is too much judicial power, then democracy is undermined. Yet the risk of majoritarian democracy casting aside minority rights is very real. As such, the courts would intervene when minority groups are systematically closed out of the political process.
Does this work to preserve the virtuous in a society, a culture, and a politics? Does it protect societal rules that cannot be articulated very well because they are developed over trial and error, a tradition that is something like wisdom without reflection, different from one community to another? Does it foster greater community and protect dissent? Beyond the obvious point that those who value virtue are necessary, I’m not sure.
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