Democracy Rising is a series of blog posts on deliberative democracy: what it is, why it’s powerful, why the time is right for it, how it works, and how to get it going in your community. The series originates in the United States but will discuss principles and draw upon examples from around the world. Views and opinions expressed in each post are those of the individual contributor(s) only.

Democracy Rising 18

Deliberation, Free Speech, and Democracy

We all have a sense (though often only a fairly vague sense) that free speech is somehow crucial to democracy. But why should that be the case? If pressed to answer that question, most people would likely mention something about the value of everyone in a democracy having a voice. We need to be able to articulate our opinions, to define our interests, to express how we feel about matters that affect our lives. Unless we can do that, we can’t influence the decisions that our governments make on our behalf, and without that influence we don’t have a democracy.

Something along these lines would not be a bad start at explaining why free speech matters so much to democracy. But I would argue that this kind of answer doesn’t get to the heart of the matter and that indeed this approach to the question has contributed to some of the gravest threats now confronting our democracy. This is most starkly evident in the case of campaign finance.

Most thoughtful Americans would agree that the vast amounts of money now being spent on election campaigns (and worse, the removal of any limits on how much wealthy individuals and even corporations can contribute to that flood) is one of the most serious diseases afflicting our body politic. Fewer of us will recall that the unleashing of these torrents of money by the U.S. Supreme Court was based squarely on that court’s interpretation of the free speech clause of the First Amendment, nor recall that the court’s reading of that clause was fully consistent with the justification of free speech suggested above—that is, that self-government depends on everyone having an opportunity to be heard.

I’m not going to explore the Supreme Court’s reasoning in Citizens United[1] and related campaign finance decisions here, having devoted several chapters of Citizens Uniting to Restore Our Democracy[2] to that analysis. In a nutshell, what I have argued there is that there are three major dimensions of speech that have some bearing on democracy: expression, information, and deliberation. Briefly, we can think of these forms of speech and their relationship to democracy in these terms:

  • Expressive speech (and other forms of expression) let decision-makers know how you feel about some public concern. Protest marches are a classic example.
  • Informative speech is used to help officials make decisions and citizens to choose candidates more intelligently.
  • Deliberative speech is used by both citizens and officials to work through complex or difficult issues in an attempt to reach sound and sustainable solutions.

Of these three, the one making the thinnest contribution to a healthy democracy is expression, but it is the one on which the Supreme Court has based its democratically disastrous campaign finance decisions.

The resulting tsunami of money into campaigns has had the perverse effect of making campaigns less rather than more informative to citizens actually desiring to make informed electoral choices. That has happened because, beyond a certain fairly low expenditure threshold, the only effective way to spend more money on a campaign has proven to be by purchasing negative advertising, which is notoriously high in emotional content and low (to negative) in actual, valid information. But because the Supreme Court has equated free speech with “expression,” it has put these injurious forms of electoral expression on a constitutional pedestal and thus beyond our democratic reach.

Meanwhile, the capacity of our governing institutions to deliberate their way to sound and sustainable solutions to the serious problems confronting our society has been steadily undermined, both by this unchecked campaign spending and by ever more rampant partisanship. It is in this sorry context, then, that we are invited by this blog series to remind ourselves of the central importance of deliberation to democracy, and of the dependence of democratic deliberation on free speech.

The fact is, of course, that a viable democracy does depend on speech being free of prior constraints as to its content, but for reasons that have everything to do with information and deliberation and very little to do with expression. Indeed, the informative and deliberative functions of free speech depend fundamentally on its expressive function being sensibly restrained. Perhaps no one has explained this more clearly than Alexander Meiklejohn in his 1948 classic, Free Speech and its Relation to Self-Government.[3] Using the example of a New England town meeting to illustrate his point, Meiklejohn reminds us that the meeting cannot get its work done unless there are strict and well-understood limits on how long any individual can speak, etc. “The town meeting,” he writes, “as it seeks for freedom of public discussion of public problems, would be wholly ineffectual unless speech were thus abridged.”[4] Meiklejohn concludes with an unforgettable encapsulation of this description of how democracy actually works: “It is not a dialectical free-for-all. It is self-government.”[5]

Here is a compact formulation not only of our deep democratic malaise, but also of the healing power of deliberation in that context. To far too great an extent, with the active encouragement of the Supreme Court and of both political parties, our public life has sunk to the level of “a dialectical free-for-all.” But wherever the democratic art of deliberation has been kept alive, encouraged, nurtured, and expanded, the genuine value of free speech has been put to its ancient purpose of enabling thoughtful people to solve difficult problems together.

The various essays in this series aim to illustrate in detail how deliberation makes this contribution. The one aspect of deliberation that I would stress is the unique access it gives us to collective intelligence. Given the scope and complexity of problems facing modern society, it is very rare indeed for one individual to be able to provide a comprehensive solution to any of those problems. In almost every case, it takes many people thinking together to devise a sound and sustainable solution. But this is precisely the strength of democratic deliberation: it enables us to mobilize collective intelligence as no other form of decision-making can do.

In those terms, the next challenge of the deliberative democracy movement may be to bring its insights and practices to bear, not just on extremely difficult substantive problems like equity, racism, homelessness, or climate change, but on the meta-problems of democracy itself, like the unlimited amounts of money in campaigns or the unrestrained role of partisanship in our governing institutions. In the end, these problems are most likely to be solved as democracies always most effectively solve problems: by democratic deliberation.

 

[1] Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). See also, Buckley v. Valeo, 424 U.S. 1 (1976); First National Bank of Boston v. Bellotti, 435 US. 765 (1978); McCutcheon v. Federal Election Commission, 572 U.S. 185 (2014).

[2] Daniel Kemmis, Citizens Uniting to Restore Our Democracy (Norman: University of Oklahoma Press, 2020), Chapters 5 -7.

[3] Alexander Meiklejohn, Free Speech and its Relation to Self-Government (New York: Harper Brothers Publishers, 1948).

[4] Ibid., 23.

[5] Ibid.