Chapter Six
Toward a Somewhat New Constitutional Defense of Free Speech

This study demonstrates that philosophical and jurisprudential justifications of expression rights are not timeless verities but reflections of the unique political and legal climate of their era. Conservative libertarianism expressed the value that late nine-teenth-century thinkers placed on individual rights. Civil libertarianism expresses the value that twentieth-century thinkers place on democratic processes. Zechariah Chafee and others emphasized the social importance of uninhibited debate on matters of public importance because they were committed to developing a philosophical and constitutional defense of free speech that was consistent with those principles of pragmatism and sociological jurisprudence that progressive thinkers considered the foundations for all sound arguments. The "worthy tradition" they founded is a product of the peculiar intellectual conditions of their times, not a position inherent in either liberalism or the constitutional history of the United States.

Placed in its proper historical perspective, the modern constitutional defense of free speech offers new opportunities and presents new challenges for those committed to a democratic society. Freed from the myth of the single civil libertarian tradition, theorists need not continue straining inherited principles to extract some answers to the pressing First Amendment issues raised by campaign finance reforms and access rights. Instead, the next generation of libertarians can develop original conceptions of ad-

vocacy rights that incorporate late twentieth-century intellectual developments in an effort to resolve late twentieth-century problems. Although their theories cannot ignore traditional free-speech problems, contemporary libertarians must explore the constitutional relationships between expression and economics with the same energy that they have heretofore devoted to the constitutional relationships between advocacy and lawless conduct.

The Lessons of the Past

Civil libertarian doctrine suggests that efforts to develop new constitutional defenses of expression rights present few challenging theoretical problems. Chafee, Meiklejohn, and Emerson agreed that the central task of libertarian scholarship is to discover the policies that best promote the values served by public debate.1 Hence, once they recognize that a general theory of the First Amendment must address mixed questions of speech and property, third-generation civil libertarians apparently need only adjust the standards required by the democratic process model of free speech to ensure that libertarian theory keeps abreast of whatever threats material inequalities currently present to the system of freedom of expression. Like their distinguished ancestors, contemporary proponents of expression rights can then claim that the rules that best contribute to the discovery of truth on matters of public importance also define the scope of the constitutional meaning of free speech.

Most scholarly discussions share civil libertarianism's understanding of the actual relationships between political and legal arguments. Studies of the way constitutional doctrines evolve regularly assume that persons and groups do not experience serious difficulties when expressing their values in jurisprudentially terms. Although identifying the practices that best promote private or public goals may be extremely complex, developing legal justifications of those practices, many intellectuals argue, is relatively easy. This belief that law is simply politics in another forum is particular prominent among those political scientists who, influenced by David Tremens’ The Governmental Process,

regard constitutional discourse as the mere rationalizations of interest groups. Proponents of political jurisprudence typically assert that most advocates claim the Constitution either supports or requires whatever policies they believe best serve the public interest. Martin Shapiro, for example, argues that the "principle role" of legal argument, "like that of most lobbying, is not to persuade 'the guys on the other side' but to provide good arguments for 'our guys.'"2

For this reason, civil libertarians and students of American law frequently see a close correspondence between the legal doctrines a jurist espouses and that person's underlying political preferences. Chafee and others maintain that persons who broadly interpret First Amendment rights believe that government should rarely, if ever, restrict speech. Persons who narrowly interpret First Amendment rights believe that the liberty of expression ought to be limited.3 On similar grounds, Shapiro suggests that the Carolene Products footnote is best understood as a general "blueprint for transferring Supreme Court political services from Republican to Democratic clienteles." The New Deal court, he further claims, protected free speech because its protection served the interest of members of the New Deal coalition, most notably intellectuals. Privacy and sociological jurisprudence did not, in this view, influence either the Court's decision to protect free speech or the nature of that protection.4

Unfortunately, examining the first transformation of the constitutional defense of free speech demonstrates serious flaws in this explanation of doctrinal development. Translating abstract libertarian commitments into constitutional argument has never been a simple task. Over and over again, civil libertarians have acknowledged that their constitutional arguments do not fully satisfy their political agenda. Although the leading figures of civil libertarianism demand that interpretations of the First Amendment respond to the major problems facing the system of freedom of expression, they admit that their proposals do not address serious threats to the attainment of truth on matters of public importance. As noted in chapter 3, some early civil libertarians conceded that the judiciary lacked the power to protect the expression rights they cherished. Chafee confessed that un-

der the clear and present danger test judges would have to sustain speech regulations he thought were unwise.

Most significant, civil libertarians from John Dewey to Thomas Emerson have consistently asserted that material resources must be distributed equally if all persons are to have the actual capacity to exercise their expression rights, but they have proposed constitutional doctrines that they admit let wealthy political activists dominate the marketplace of ideas. This shortcoming does not result from cramped visions of civic life, a defect that can be repaired by greater appreciation of the nature of a truly democratic society. Chafee and his successors continually urged elected officials to pass economic and social policies that would enable every citizen to participate in public life. Civil libertarians, however, do not allow judges to take account of the relationships between speech and property, even though they recognize that these relationships adversely affect the functioning of the system of freedom of expression.

This study suggests that ideological obstacles confronted by all arguments explain why civil libertarians failed to develop constitutional doctrines that sufficiently promote their values. Scholars working from many perspectives realize that the dominant modes of argument in a given society affect the content of political advocacy. Quentin Skinner, perhaps the most forceful proponent of this view, insists that "the courses of action open to any rational agent must in part be determined by the range of principles which he can profess with plausibility." "To be understood," James Boyd White observes, a speaker "must use the language of his audience."5 Thus, the intellectual climate of any particular historical period limits potential policy alternatives. As Skinner points out, because political actors "cannot hope to stretch the application of the existing principles indefinitely," they "can only hope to legitimate a restricted range of actions."6

Indeed, the intellectual climate of a given society affects conceivable policy alternatives. If, as many social scientists argue, "all aspects of social life are pervaded by decidedly non-neutral assumptions whose acceptance by a member of the culture define what is 'possible' for that person,"7 then partisan activists

may be incapable of conceptualizing the reforms that best advance their ends. Thus, the community's dominant patterns of justification constrain all efforts to improve the system of freedom of expression or resolve any other social problem. The broader ideological environment restricts both the arguments that libertarians choose to make and the arguments they are capable of choosing.

In this respect, doctrinal evolution resembles institutional development. In Building a New American State, Stephen Skowronek observes that political change is "mediated by the organization of the preestablished state."8 Although existing state structures can be modified in many ways, they shape prevalent political reforms because the old forms must implement the new. Political and constitutional theories develop in a similar manner. When faced with new problems, scholars apply preexisting patterns of justification. "The terms used by the founders of a new form of cultural life," Richard Rorty points out, "will consist largely in borrowings from the vocabulary of the culture which they are hoping to replace."9 Indeed, the ruling ideas of a culture can be thought of as among that society's central political institutions.10

Of course, as Skinner notes, intellectuals are "limited by the prevailing conventions of discourse," but they are not "limited only to following those conventions."11 They may apply old principles in new ways and, in doing so, modify those principles for future users. Hence, the intellectual environment changes over time, and the struggle to influence those changes is one of the most bitterly fought contests of social and political life.

Nevertheless, the ideological institutions of a given society constrain the theoretical analysis of new problems. Political and constitutional theorists function within specific intellectual contexts and can deploy a limited set of intellectual resources. They do not create arguments ex nihilo or repeat timeless themes first given to Adam and Eve in the Garden of Eden.

By analyzing the institutional constraints that general developments in American political and legal thought place on efforts to justify particular policies, scholars can better explain the functional weaknesses of modern free-speech theory. Although conservative libertarian arguments were responsive to repres-

sive practices during World War I, progressives rejected that conception of expression rights because it was premised on what they believed were logically and socially indefensible notions of individual rights. Early civil libertarians maintained that any sound philosophical or constitutional argument must be derived from the principles of pragmatism and sociological jurisprudence.12 Relying on the works of John Dewey and Roscoe Pound, Chafee and others based a new defense of free speech on the social interest in debate on matters of public importance. Their clear and present danger test was initially less protective of political dissent than the incitement rule advocated by late nineteenth-century treatise writers, but this test was the only standard they could justify given the available intellectual resources.

Civil libertarianism was not, however, merely a mechanical application of early twentieth-century thought. Before Chafee published and popularized his arguments, progressive thinkers opposed all manifestations of judicial activism in constitutional cases. Judicial policy making, such progressives as Edward Corwin claimed, was inconsistent with the majoritarian premises of American government. Although Chafee had to work within the frameworks of pragmatism and sociological jurisprudence, he did not have to accept claims that these modes of argumentation could not constitutionally defend free speech. Like the founders of other traditions, Chafee used the materials of an inherited language in ways that offered new possibilities to his contemporaries. He did so by demonstrating that judicial solicitude for expression rights could be justified within the parameters of sociological jurisprudence. In particular, Chafee claimed that judicial activism on behalf of free speech purified the democratic process, thus strengthening progressive claims that courts should not second-guess the substantive outputs of the people's elected representatives. This modification of Pound's philosophy of law helped inspire a new form of legal discourse, one that permitted twentieth-century jurists to oppose both Lochner v. New York and Abrams v. United States.

While Chafee was able to defend more speech than many progressives had thought possible or desirable, civil libertarians were never fully able to escape the limitations of a political and

constitutional theory originally designed to justify transferring economic power from the courts to the elected branches of government. Sociological jurisprudence insisted that judges had neither the right nor the competence to strike down policies chosen by the people's representatives. To stay within these limits, Chafee and his Successors sharply distinguished laws affecting the democratic process from laws allocating economic and social resources. Although this division enabled them to increase judicial protection for minority opinions, the modern constitutional defense of free speech became oblivious to the manifold relationships between political expression and private property. Libertarians soon assumed that politics and economics had always been two autonomous realms within constitutional discourse. Alternative understandings of expression rights were no longer rejected; they were lost. As a result, contemporary free-speech argument continues to emphasize the relationship between words and harmful conduct at the expense of seriously analyzing an owner's right to convert material resources into political speech. While the ACLU and other sympathetic jurists recognize the substantial effect that economic inequalities have on a system of freedom of expression, they work within a model of the judicial function that consigns those problems to the periphery of First Amendment theory.

If this analysis is sound, then intellectuals committed to correcting civil libertarianism's failure to resolve mixed questions of property and speech will no more be able to write on a blank slate than was Chafee. Even if a given scholar transcends the conceptual institutions of his or her culture, effective advocacy must conform to the belief systems of the time. Theorists cannot create new interpretations of expression rights from nothing; rather, they must transform the ideological resources of present-day society. Unfortunately, contemporary modes of legitimation may not support all the reforms that would characterize a truly healthy system of freedom of expression. The best understanding of constitutional expression rights may be one that can be neither justified nor even imagined by persons who work and think within the framework of late twentieth-century American philosophical and jurisprudential thought.

Obviously, knowing that some arguments may be beyond our present conceptual powers is of little use in constructing a system of freedom of expression for our time, although one purpose of this study is to expand the conceptions of expression rights available to intellectuals. However, libertarians should take seriously the possibility that some valid philosophical or constitutional arguments may simply be unacceptable to the late twentieth-century American mind. Many aspects of progressive thought no longer constrain legal argument, but the present ideological climate imposes different limits on efforts to constitutionalize the democratic vision that first inspired the modern constitutional defense of free speech. A few respectable contemporary thinkers have suggested that judges should second-guess some substantive social policies made by elected officials.13 Mainstream thought, however, is still hostile to claims that judges should declare that all citizens have constitutional welfare rights. For example, legal activists frequently ask courts to strike down state laws restricting abortion rights, but the constitutional attack on Reaganomics has been limited to a few law review articles. In this intellectual environment, it may not be possible to argue persuasively that judges should guarantee all persons the material prerequisites for effectively exercising their political rights.

The evolution of the last section of Transforming Free Speech illustrates the constraints that recent legal developments place on libertarian arguments. In an earlier version of this work, I claimed that all persons should have the right to the resources necessary to participate in their community's search for the public good.14 Although I still maintain this as a valid political ideal, I am no longer sure it is a constitutional ideal,15 and I seriously doubt whether such an argument can be made convincingly at present. Given the direction of the Rehnquist Court, the best libertarians can do, I believe, is strengthen the constitutional case for campaign finance reform while hoping to create an atmosphere more hospitable to welfare rights.

Advocating doctrines unlikely to be accepted immediately is still a worthwhile activity. A profound defense of the right to have the resources necessary to participate in the community's

search for the public good may significantly influence the intellectual climate of the unforeseeable future. It is a truism that pundits celebrated in their time are soon forgotten, while more obscure thinkers gain future favor. Most civil libertarians, however, wish to influence the present operation of the marketplace of ideas. Thus, contemporary proponents of a democratic society may confront the same difficult decision faced by early civil libertarians. They will also have to choose between promoting speech-protective doctrines that may gain the public's favor and advocating speech-protective doctrines that, if accepted, would actually best enable the system of freedom of expression to function under contemporary conditions.

Persons committed to a democratic society will never be able to avoid these painful choices. Although this study has documented the weaknesses of civil libertarianism, its continued general appeal suggests that Chafee's arguments express something fundamental in contemporary American political and legal thought. A theorist who completely disregards that model of constitutional argument probably surrenders whatever power a scholar may have to affect the present course of First Amendment theory. The intellectual resources of the late twentieth century, however, can improve our theoretical understandings of expression rights. For this reason, rather than completely abandoning civil libertarianism, jurists can use certain developments in recent scholarship to amplify some of its themes in ways that ultimately transcend their limitations.

Future libertarians can be more self-conscious about the central issues their theories seek to resolve. Heretofore, most works on the First Amendment have attempted to answer the question, When can speech be restricted? Such an approach suffices if the main threat to the values underlying expression rights is government policies that directly silence political and social dissent. As Chapter 5 indicated, however, most social scientists and academic lawyers agree that the dominant free-speech issues currently being adjudicated concern control over the material resources necessary for effective speech. The central question raised by cases concerning the constitutionality of campaign finance reform or access rights is What is speech? Enlightening analyses of the circumstances when speech can be

restricted do not necessarily explain when speech has occurred. Hence, new theoretical approaches should be explicitly designed to address the constitutional relationships between free speech and private property.

Of course, no general theory of the First Amendment can resolve all controversies over expression rights. Inevitably, libertarians will have to develop subsidiary doctrines for particular problems, but their discussions of the central meaning of the First Amendment should address those practices that presently threaten most directly the system of freedom of expression. If such cases as Buckley v. Valeo have had the most significant impact on the values free speech serves, then libertarians must treat the constitutional relationships between speech and property as a paradigmatic question that a general theory of the First Amendment must answer. Peripheral doctrines should only be devised to deal with peripheral matters.

This emphasis on actual threats to the system of freedom of expression requires some empirical research. Academic lawyers cannot assume the system of freedom of speech is healthy merely because the grandchildren of Eugene Debs and Joseph Gilbert are not being arrested. Established groups may have abandoned traditional forms of speech restrictions only because they have found more effective means of unconstitutionally biasing the marketplace of ideas. Nothing in Transforming Free Speech, I should emphasize, conclusively establishes this point. While many social scientists and civil libertarians claim that material inequalities significantly threaten the system of freedom of expression, other disagree. Some thinkers insist that the effects of money on politics are either trivial or beneficial.16 If the constitutional relationships between free speech and private property do not significantly affect the functioning of the marketplace of ideas, then future libertarians can justifiably exile mixed questions of speech and property to the hinterlands of First Amendment theory. But given the emphasis that such civil libertarians as Chafee, Meiklejohn, and Emerson placed on developing doctrine that best promotes the values underlying expression rights, contemporary civil libertarians should not tolerate scholarship that asserts these problems are of great practical importance but little theoretical interest.

Future libertarians must also develop more sophisticated concepts of political liberty and political equality, ones that recognize (if this is empirically the case) that economic and social policies have significant impacts on democratic processes. Political liberty cannot simply mean that government cannot interfere with the operation of the democratic process because virtually all forms of state action affect the democratic process. Political equality cannot simply mean that all persons should have the same power to affect democratic outcomes because such an ideal would require that government equalize virtually every human difference. Indeed, as Douglas Rae and others have pointed out, the totally equal society presupposed by much advocacy of campaign finance reform is a practical, if not a logical, impossibility.17

To avoid these difficulties, general theories of the First Amendment must ask When is money speech? rather than Is money speech? More generally, libertarian theory needs to recognize that in representative democracies some persons will have more power than others. The decision to elect or appoint officials, rather than choosing them by lottery, indicates that a society believes certain inequalities—whether inequalities of wealth, popularity, wisdom, integrity, or eloquence—justify political inequalities. The next defense of free speech must specify which inequalities persons can exploit to achieve political power and which government can regulate.

This approach fits easily within the intellectual environment of late twentieth-century America. Such contemporary works of political philosophy as John Rawls's A Theory of Justice discuss the philosophical relationships between free speech and private property. Robert Dahl's Democracy and Its Critics similarly explores theoretical connections between material inequalities and democratic processes.18 Future libertarians need only incorporate some of this scholarship into their general theories of the First Amendment; this is, after all, exactly what Chafee and his allies did seventy years ago.

In short, the main lesson the libertarian past teaches is that the system of freedom of expression does not stand apart from American political and intellectual developments. As we have seen, the evolution of the constitutional defense of free speech

cannot be fully understood without looking at broader developments in American political and legal thought. Furthermore, the problems of contemporary free-speech theory cannot be resolved unless libertarians quite consciously incorporate these broader political and jurisprudential themes in their works. If the system of freedom of expression is to remain functional in the twenty-first century, then future civil libertarians must explore the actual relationships between expression and economics and develop theoretical frameworks for evaluating the relationships they find.

A Theory for the Future?

This book could easily end here, but I am unable to resist the temptation to slip in a preliminary sketch of a new general theory of the First Amendment. Over the next few years, I hope to develop a political libertarian approach to free-speech problems. This conception of expression rights borrows heavily from the writings of Michael Walzer, the contemporary political theorist who most closely identifies with the views of early civil libertarians. In Spheres of Justice and other works, Walzer analyzes problems that civil libertarianism neglects. He discusses the philosophical significance of various relationships between political and property rights and explains which inequalities citizens should be free to exploit in the political marketplace. Although I do not agree with all his conclusions or methods, I believe that Walzer's works provide a sound starting place for a future libertarianism.

Walzer maintains that democratic societies prevent persons better off in one sphere of life from dominating other spheres. "Society," he argues, "enjoys both freedom and equality when success in one institutional setting isn't convertible into success in another."19 Those who endorse this vision do not worry if some persons have more money, more political power, or more luck in love, as long as money, political power, and love are distributed according to social understandings about what those goods are and the mere possession of one good does not enable a person to possess all others. Proponents of "complex equality" contend that just political and social institutions limit the goods

that unequally distributed resources can be used to obtain. For example, Walzer thinks that persons should be allowed to use monetary advantages to purchase more luxury goods than their neighbors but not better basic health care. Similarly, most people think that physically attractive adolescents should be allowed to exploit their looks at their high school prom but not in college applications.20

Walzer's writings have been justly criticized for ignoring communal disagreements over the meaning of many goods he discusses,21 but American society has reached a partial consensus on the best means of apportioning political power. Elections and policies, we agree, should not be decided on the basis of the contending parties' wealth. The Federalist Papers called for a large republic where citizens would be more "capable of choosing a fit representative" because they were "less likely to be diverted [by] the bribes of the rich."22 The Jacksonian crusade against the money power, Sumner's tirades against plutocracy, and Dewey's advocacy of positive freedom were similar efforts to prevent material advantages from being converted into political resources. Contemporary opponents of campaign finance reform argue that there are better ways of controlling the insidious effect that economic inequalities have on the political process or assert that the risk of undue influence is the unfortunate price we pay to enjoy the superior benefits of free speech. Rarely do persons explicitly claim that money should make a difference in the public sphere.23

Most Americans think that democratic societies should allocate "political power . . . by arguing and voting." Hannah Arendt, I believe, stated an American as well as a Greek ideal when she celebrated "a way of life that was based exclusively upon persuasion and not upon violence."24 Scholars as diverse as James Boyd White, Jürgen Habermas, Woodrow Wilson, and Richard Rorty variously praise the virtues of "a world of equal speakers with each other." Some thinkers maintain that government by conversation is the best way of discovering truths about human nature and social life. Others insist that democratic cultures regard persuasion as the means by which human beings create truth. However, as Rorty recognizes, this dispute over the function of public debate on matters of public impor-

tance "concern[s] only the self-image which a democratic society should have, the rhetoric which it should use to express its hopes," and not the speech policies that such a society should pursue.25

Walzer shares these visions of the democratic community. In Spheres of Justice he insists that "democracy puts a premium on speech, persuasion, rhetorical skill." In this view, those persons best able to convince their contemporaries are entitled to the greatest share of political power. "Ideally," Walzer suggests, "the citizen who makes the most effective persuasive argument—that is, the argument that actually persuades the largest number of citizens—gets his way."26 Walzer also maintains, correctly in my opinion, that the ability to manage a campaign or perform any needed role in it are skills that also entitle a person to a share of political power. If this is correct, then the integrity of the political sphere is preserved when inequalities in political power reflect differences in the "rhetorical skill and organizational competence" of those who seek that good.27

Tyranny occurs when persons with political power convert that good into some other social good or when persons who have unequal, though justifiable, shares of some other social resource convert that good into political power. Classical liberalism established limits on the former sorts of boundary crossings. The founding fathers fought to create realms of religion, property, and privacy that were immune to the vicissitudes of political power.28 Thus, the establishment clause of the First Amendment prevents the electorally successful from also resolving debates over theological questions. The contract and just compensation clauses similarly prevent democratic majorities from negating some of the benefits enjoyed by economically successful citizens. However, Walzer notes, modern societies must be as sensitive to protecting the distribution of political power "from the new power that arises within civil society itself, the power of wealth." New rules are needed to prevent material inequalities from trumping inequalities of "rhetoric skill and organizational competence" in the political arena. "Citizens," Walzer concludes, should "come into the forum with nothing but their arguments. All non-political goods have to be deposited outside: weapons and wallets, titles and degrees."29

These principles suggest the following interpretation of the First Amendment. The Constitution gives all persons the right to use their persuasive and organizational abilities to obtain political power. Thus, expression rights are violated whenever legislatures attempt to alleviate the disparities that result when persons take advantage of their political talents in the marketplace of ideas, although judges may justifiably prevent the politically powerful from dominating other social goods. Democratic majorities can never, or hardly ever, ban any argument or any manner of presenting arguments on the grounds of persuasiveness. If persons think that a particular candidate or policy is shallow, ignorant, mendacious, or destructive, they must persuade the public that their alternative is better. Demagogues must be exposed; they cannot be censored.

Political libertarians think that persons have the right to choose the policies they advocate and the means they believe will communicate their opinions most persuasively. "Congress," Justice Holmes should have said, "cannot forbid any effort to change the mind of the country," as long as such effort relies exclusively on resources that belong in the political sphere. From this perspective, virtually all traditional restrictions on speech are unconstitutional. Individuals have the right to persuade their fellow citizens that an ongoing war should be abandoned or intensified, that a military draft is constitutional or unconstitutional, or that they ought or ought not volunteer for the armed services. The Constitution protects speakers who advocate or oppose communism. A young man who wishes to wear a jacket with the lettering "FUCK THE DRAFT" has the same First Amendment right that his parents had when they wore the more sophisticated "I LIKE IKE" button.30 For similar reasons, persons have the constitutional right to burn the flag. Ineffectiveness is the only punishment prescribed for speech others find offensive or simplistic.

Elected officials theoretically have the power to punish those who seek political power through inciting illegal conduct. Crime, after all, can be understood as a way of redistributing rights without persuading the relevant members of the public. The thief, for example, convinces neither the lawful owner to hand over his or her belongings nor the legislature to change the

law of property. However, the Constitution does protect speakers who merely advocate the desirableness of criminal conduct or whose condemnations of existing policy may inspire others to break the law. Indeed, speakers have the constitutional right to urge their fellow citizens to abandon government by persuasion. Until they are successful, however, only speech uttered for the purpose of causing criminal conduct is beyond the pale of the First Amendment.

Political libertarianism clearly protects the free-speech rights of such dissidents as Charles Schenck, Eugene Debs, Jacob Abrams, Joseph Gilbert, Anita Whitney, Angelo Herndon, and Eugene Dennis. These speakers all attempted to persuade their audiences to adopt superior alternatives to the status quo. In my opinion, Benjamin Gitlow was the one speaker surveyed in this work who may have attempted to incite criminal conduct;31 if so, then the First Amendment does not protect his speech. Nevertheless, I believe that the Supreme Court should have reversed Benjamin Gitlow's conviction. Actual standards of judicial protection must consider the historical tendency of juries and judges to impute unlawful motives to speakers with whom they disagree. As Justice Douglas recognized, given the actual dynamics of repression, courts are likely to maximize the number of cases they decide correctly if they adopt a rule that absolutely bars convictions where the primary evidence of criminal intention is the text of the actual speech.32

This emphasis on rhetorical ability, I should emphasize, does not necessarily favor the interests of the so-called "new class" of intellectuals. Walzer recognizes that the philosopher "must live with the ordinary odds of democratic politics"; and in democratic politics "truth is indeed another opinion, and the philosopher is only another opinion-maker."33 For better or worse, few scholars have successfully convinced their fellow citizens to adopt their preferred policy prescriptions. Although most intellectuals regarded Ronald Reagan as a lazy yahoo whose economic and military policies were dangerously simplistic, most Americans found our fortieth president a far more persuasive figure than their old government professors.

Because they are not entitled to any share of political power, corporations have no expression rights independent of the

rights of their owners. Corporate speech may be restricted as long as legislation does not discriminate among different speakers who wish to use the corporate form. Corporate speech may not be different in kind from individual speech, but artificial entities are different in kind from actual persons. Hence, in Bellotti, the Supreme Court should not have struck down the Massachusetts ban on corporate contributions during referendum campaigns. General Motors and the Bank of Boston have no First Amendment rights for the same reason they can neither vote nor run for political office.34

When confronted with questions about the constitutional relationships between political expression and private property, political libertarians properly ask When is money speech? rather than Is money speech? Individuals have the constitutional right to convert their material resources into political expression as long as the average member of the community can afford to invest similarly in politics.35 They are entitled to choose the medium of their communication as well as their mode of communicating. Persons who are better able to persuasively use any asset available to most members of the public gain political power by virtue of their political skills. For this reason, those who object to short political advertisements on television should not be able to forbid others from making fifteen-second spot commercials. They must either convince the public that such presentations are worthless or find more successful means of communicating their own messages.

Citizens also have the right to combine in order to afford more expensive means of communicating their political ideas. Legislatures cannot constitutionally limit the resources that can be used to convince the public of the merits of any political proposal. Less articulate persons may decide that they can most persuasively communicate their values if they assist other power seekers, even if they lose some control over the content of their speech in the process. This is a risk they are free to assume. Constitutional principles are not offended when candidates or political organizations amass and use funds contributed by citizens who share their goals, as long as any equally persuasive candidate or political organization would be capable of raising the same amount of money from an equal number of citi-

zens. For this reason, although its reasoning was wrong, the Burger/Rehnquist Court correctly held that there can be no constitutional limits on the funds expended by candidates or political action committees as long as those funds were donated by many small contributors.36

Money ceases to be speech only when persons attempt to convert their material advantages into political expression. No one has a constitutional right to use economic privilege to magnify otherwise relatively weak political skills. Citizens must persuade others to contribute to their campaigns if they need more resources to promote their opinions than the average member of the community can afford to invest in politics. Affluent Americans have no First Amendment right that permits them to achieve political success through constant repetition of relatively unwanted ideas.

To ensure that political resources determine the allocation of political power, elected officials are constitutionally permitted to regulate the effect of material inequalities on the marketplace of ideas. First, legislatures can limit the money that persons can spend for political reasons, provided that such limits are pegged at a level above that which most citizens can afford. Thus, in Buckley, the Supreme Court should not have struck down the provisions of FECA that limited the money a candidate could spend on his or her behalf or that another individual could independently spend on behalf of a political candidate. Second, persons who attempt to take political advantage of their superior material resources can be forced to grant access rights to less fortunate political activists. Although a radio station supported entirely by small contributions from listeners would not have to grant a right of reply to those who disagreed with its editorial policies,37 a station that depended on a few large donations from wealthy individuals, advertisers, or corporations would. Indeed, political libertarians should think seriously about treating commercial broadcasters as commercial speech.

These policies will admittedly inhibit some speech. The owners of Logan Plaza or other shopping centers might decide not to permit any expression on their properties rather than grant all speakers reasonable access to their customers. Nevertheless,

this potential reduction of the ideas available to the public does not present serious First Amendment problems from a political libertarian perspective. Constitutional rights are threatened when persons do not participate in the marketplace of ideas for fear of being exposed to criminal or civil liability.38 There is no similar "chilling effect" when persons refrain from speaking for fear of being refuted if others are given the same opportunity to present their views. Qualms about potential rebuttals should influence speech. Persons who do not want to have their opinions challenged should not seek political power. If you can t stand the heat," Harry Truman said, "get out of the kitchen."

These observations, I should quickly add, present only a tentative and skeletal outline of how a new libertarian theory might resolve problems that civil libertarianism ignores. In my future work I hope to fully justify this conception of expression rights. Although that book will emphasize those relationships between speech and property that most affect the contemporary marketplace of ideas, it will not propose a timeless theory of expression rights. Political libertarianism, like civil libertarianism, is destined to be a product of its times. As Dewey correctly observed, the best that any theory can accomplish is to clarify and help resolve contemporary problems. Early civil libertarians recognized that scholars should not work within an inherited tradition that no longer served their purposes. Contemporary libertarians will be true to our actual First Amendment tradition only if we also transform free speech so that our theories reflect the values we cherish and respond to the threats we face.