Does Free Speech Jurisprudence Rest on a Mistake: Implications of the Commensurability Debate

Abstract

What this Article shall refer to as the "commensurability debate," a debate carried out with great vigor by a number of contemporary philosophers, unfortunately arouses suspicion that judges, despite their good faith and best efforts, are in a position roughly anaiogous to that of the tea leaf readers when the judges apply common techniques for deciding free speech cases. The judges' error is subtler and more excusable than that of the tea leaf readers. While in one sense judges are doing what they purport to be doing, a fair conclusion is that in another more important sense they are not. Typically, judges adjudicating free-speech cases purportedly engage in some form of weighing or balancing of conflicting interests? This admittedly metaphorical technique is neither explicitly referred to in the Constitution generally nor in the first amendment's Free Speech Clause in particular. Nevertheless, "the balancing of individual rights and public good [has been maintained to be] the essence of American constitutionalism." With increasing frequency, the Supreme Court of the United States has adopted one form or another of balancing in free- speech cases. This Article argues, however, that the Court cannot coherently balance state interests and the right of free speech, at least in any way authorized by the Constitution. This means that most free- speech balancing decisions are constitutionally illegitimate. However, for several reasons explored below, an "absolutist" interpretation of the Free Speech Clause is not the only remaining constitutional option for deciding free-speech cases.