Journal of Free Speech Law: "Distrust, Negative First Amendment Theory, and the Regulation of Lies," by Prof. Helen Norton

The seventh of twelve articles from the Knight Institute’s Lies, Free Speech, and the Law symposium.

The article is here; the Introduction:

That we have government at all is largely because we distrust each other: At its best, government establishes and enforces the rule of law to create the conditions that enable all sorts of valuable endeavors. But even 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 distrust. While courts and commentators have long posited that speech deserves constitutional protection when it is affirmatively valuable in facilitating democratic self-governance, enlightenment, and individual autonomy, the First Amendment tradition also relies on what many call a negative theory of the Free Speech Clause. Under this approach, the Constitution protects speech not so much because it is so valuable, but instead because the government is so dangerous in its capacity to abuse its regulatory power. Negative free speech theory thus understands the First Amendment to be more about our fears of the government than about our affirmative aspirations of the good. (At the same time, "negative" and "affirmative" First Amendment theories are not mutually exclusive, and courts and commentators commonly rely on multiple theories rather than insisting on any one free speech theory to the exclusion of all others.)

In short, negative First Amendment theory is about a negative value: distrust of government. And because the government gives us plenty of reason to distrust it, negative theory packs substantial power.

The many examples of negative theory at work include United States v. Alvarez, where a divided Supreme Court invalidated the federal Stolen Valor Act, a law that punished intentional falsehoods about 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 neither punished nor chilled any valuable speech, the plurality relied on negative theory—that is, a focus on constraining the government rather than protecting worthy speech—to uphold the First Amendment challenge:

Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania's Ministry of Truth.

It's easiest to see negative theory in action when the Court strikes down the government's regulation of speech viewed as having no affirmative value, as was the case of the lies about military service in Alvarez. But negative theory increasingly dominates the contemporary Court's approach to a wide range of other First Amendment problems.

In Reed v. Gilbert, for instance, the majority relied on negative theory when it announced that it would apply strict scrutiny to all content- and speaker-based distinctions even absent evidence of the government's malign motive. Reed struck down, on Free Speech Clause grounds, a town's sign ordinance that prohibited some signs and permitted others in sufficiently counterintuitive ways that all of the justices found that the ordinance failed even rational basis scrutiny. Even so, the majority announced more broadly that it would apply strict scrutiny whenever the government distinguished between speech based on content—making no effort to explain and distinguish the many instances where the government has long made content-based distinctions without triggering First Amendment attention (much less suspicion). In contrast, Justices Breyer's and Kagan's concurrences doubted the wisdom of this sweeping bright-line rule, describing it as inconsistent with longstanding precedent and practice.

In my view, Breyer and Kagan were right to resist. Negative theory, like any free speech theory, needs limiting principles that explain when the government's regulation of expression is constitutionally permissible—and when it is not. Without limits, negative theory always militates against the government's regulation of speech even though a completely absolutist approach is both costly and unworkable, stripping elected officials of the ability to solve pressing public problems. In other words, negative theory serves as a guardrail on government, but negative theory warrants guardrails of its own to prevent the paralysis that accompanies unbounded distrust. We need both to protect ourselves from the government and to empower the government to serve and protect us.

But when does the government deserve our distrust—or our trust? As ethicist and political scientist Russell Hardin observed, our choices to trust or distrust are largely informed by inductive reasoning—that is, by our own past experience of "the motivation of the potentially trusted person to attend to the truster's interests and his or her competence to do so." Trust and distrust are necessarily both episodic and comparative assessments: Whether we trust (or distrust) a specific actor turns on large part on when we're asked and compared to whom. Changes over time and technology can alter our experience and thus change the subjects of our distrust. And although our experience frequently leads us to distrust the government (and that there are many government actors only complicates these assessments), sometimes our experience leads us to distrust powerful private speakers even more.

Adding to the complexity of these assessments, a "central problem with trust and distrust is that they are essentially cognitive assessments of the trustworthiness of the other party and may therefore be mistaken" through both false positives and false negatives. This leads political scientist Deborah Welch Larson to urge that we "assess the epistemological basis for our distrust. Where there is a possibility that distrust is based on snap judgments or automatic stereotyping, we might try to calculate the other's interests and assess the other's past behavior."

Related to the question of when to apply negative theory is the question of how to use negative theory. For example, courts can use negative theory as a rule of decision itself: Under this approach, courts apply strict scrutiny to strike down the government's restriction of speech when they see evidence of the government's untrustworthy motive or incompetence—regardless of the regulated expression's lack of affirmative value. Or courts can instead use negative theory as a tiebreaker when various free speech theories point in different directions: Under these circumstances, one could choose to apply negative theory as a tiebreaker such that close cases always go against the government. Or courts can instead include negative theory as one of several factors in a balancing analysis where they weigh the harm threatened by the contested expression against the risk that the government will enforce the law in a partisan or clumsy manner.

In this essay, I examine the relationship between negative First Amendment theory and the government's regulation of lies. As a descriptive matter, I highlight the prevalence and power of negative theory when assessing the constitutionality of laws restricting lies. And as a prescriptive matter, I suggest that the principled application of negative theory—rooted, as it is, in distrust of the government's potential for regulatory overreach and abuse—requires that we attend 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 especially dangerous because of its malignance or clumsiness, or where its enforcement discretion is unbounded. Conversely, negative theory should pack less power in settings where the government's discretion is limited, where we don't see evidence of its self-interest or incompetence, or where listeners can't protect themselves from powerful private speakers such that we distrust nongovernmental parties even more than the government.