The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Our Largely Non-Libertarian Constitution

Many restrictions on liberty may be unwise and wrong -- but not unconstitutional.


My post on Why There's No First Amendment Problem With Compulsory Union Agency Fees drew many interesting comments, and I hope to respond to some of them. Let me turn first to this one:

Professor, whatever you may say about thus surprising position, it is decidedly not libertarian….

The government, as government, has the right to compel many things that no other entity possesses. Therefore, your analogy between government and union is grossly misplaced and frankly beneath your level of expertise.

A union is no more than a PAC or the local Right to Life organization. Do you support a government mandate that workers must support Right to Life organization or be fired?

Please reconsider this authoritarian analysis and bring back your Libertarian thoughtfulness.

Now I'm not persuaded by the substantive argument here: True, the government has the right to compel many things that other entities, such as unions, can't. But when a government employee is require to pay union agency fees, that requirement is still imposed by the government, much as the requirement to pay taxes is imposed by the government. (Indeed, requiring government employees to pay agency fees burdens liberty less than does requiring people to pay taxes; government employees could escape agency fees by changing jobs, and taxpayers can't.) And while the government can't require people to "support" right-to-life organizations in the sense of expressing agreement with them, it can certainly require people to financially support — via taxes — the government's own anti-abortion advocacy; if so, I think it can equally require people to pay taxes to other organizations that end up using some of that money for anti-abortion advocacy.

But there's a deeper point here, and that has to do with my position on the First Amendment / agency fee question being "decidedly not libertarian." Indeed, the position certainly is not libertarian. Yet the proper interpretation of the Constitution is often not libertarian, I think, because the Constitution is not primarily a libertarian document.

The Constitution, first and foremost, establishes a federal government. Indeed, it deliberately establishes a stronger federal government than existed before. It also assumes the existence of state governments. It sets up a structure for the federal government that enables democratic lawmaking; state constitutions do the same for state governments. These constitutions do set up checks and balances aimed in part at preventing certain forms of tyranny. But the constitutions certainly authorize a wide range of constraints on liberty, chiefly because they leave judgments about the proper scope of liberty — and the proper restraints on liberty — to the democratic process.

Now the Bill of Rights, and some similar provisions in other parts of the Constitution, are indeed supposed to directly protect liberty, and courts are understood as having the duty to enforce those protections. In that respect, the Free Speech Clause, for instance, is libertarian; certainly the modern law of the Free Speech Clause has provided broad protection for liberty of speech.

But the Free Speech Clause deliberately identifies a certain zone of liberty — the freedom of speech — that is an exception to the normal rule of political decisionmaking. Government action that doesn't intrude on the freedom of speech may be unlibertarian, may be unwise, may be oppressive, may be many things, but it's not a violation of the Free Speech Clause.

The legal system thus needs to draw a line between what constitutes the freedom of speech and what doesn't, and in particular what constitutes a speech restriction (or a speech compulsion) and what doesn't. This isn't an easy process, and it isn't one that's always defined by the literal meaning of the word "speech." (For more on how Anglo-American law has long treated certain kinds of symbolic expression as tantamount to verbal expression, for instance, see my article on Symbolic Expression and the Original Meaning of the First Amendment.) But I see no basis for concluding that such a line should always be drawn in an especially "Libertarian" way, for instance by defining "freedom of speech" to include "freedom from being required to pay money that will be used for speech," or "freedom from being required to pay money directly to nongovernmental organizations which will then use that money for speech."

Will's and my brief goes into that substantive argument in more detail; please have a look at that if you're interested. But the fact that this analysis isn't "libertarian" does not trouble me at all. Indeed, if all my judgments about free speech questions — including about questions that do not actually involve outright restrictions on outright speech — always yielded the "libertarian" result, then I think that itself would be reason to doubt my "thoughtfulness."