Deliberative Autonomy and Legitimate State Purpose under the First Amendment

The right to free speech is usually thought of as rooted in autonomy of speaker: An autonomous individual may speak freely and state may not stop her. Some commentators have found such autonomy-based view of our free speech rights abstract and divisive. Turning instead to interests of audience, they start with our commitment to democracy and regard right to free speech as instrumental to our democratic interest in open public dialogue. (1) I argue here that free speech law does--and should--revolve around alternative organizing principle: autonomy of listener. The particular conception of autonomy I advance here is deliberative autonomy. Deliberative autonomy looks to purposes of state regulation and asks whether they are consistent with liberal conception of person that underlies constitution. In context of free speech, deliberative autonomy precludes government from denying citizens access to others' speech based on presumptions about how listeners will react. This point is especially important today, when it is tempting to shut down speech of fundamentalists who do not believe in constitutional rights that would protect them. (2) The reason that United States government may not prevent such individuals from proclaiming evils of a religion, a society, or a nation lies neither in their right to express hatred nor in public interest in hearing or 'airing' such hatred. Rather, government must allow speakers to express disdainful and even indirectly dangerous views because to disallow speech out of fear that speech will be persuasive violates deliberative autonomy of those whom censorship aims to protect. Deliberative autonomy is deliberative not in general sense that government should not interfere with deliberation, but in more specific sense that government may not act in a manner that denies our capacity to reason and deliberate. (3) As a consequence of its nature as a demand for recognition, in first instance, deliberative autonomy constrains state purpose. State purpose is not identical with reasons that a government gives a court; it must be inferred from social meaning of state's justifications. I begin in Part I by developing concept of deliberative autonomy and contrasting it with alternative conceptions of autonomy that have been proposed under First Amendment. In Part II, I show how deliberative autonomy already manifests itself in free speech doctrine. Part III explores relationship between deliberative autonomy and democracy, and argues that, contrary to theories that treat autonomy as merely instrumental for democracy, autonomy motivates democracy and is in that sense prior to it. In Part IV, I defend focus on state purpose and advocate interpretation of state purpose by way of social meaning. State purpose is essential to a number of constitutional doctrines, including free speech, but interests of autonomy are best served where, for historical reasons, Court is most sensitive to social meaning of state action. Part V responds to two frequent challenges to autonomy-based theories of First Amendment, by showing how, because deliberative autonomy is only a regulative principle, (4) it depends neither on empirical conditions nor on a holistic moral philosophy. Finally, in Part VI, I discuss how application of principle of deliberative autonomy can place negative and positive burdens on state. I. THE CONCEPT OF DELIBERATIVE AUTONOMY Joel Feinberg identified four types of autonomy: first, the capacity to govern oneself; second, actual condition[s] of self-government; third, an ideal of character; and fourth, sovereign authority. (5) An authority conception of autonomy may derive from a view about our capacities and virtues, but as a principle, it asserts a kind of jurisdictional right of persons over certain aspects of themselves. …