Frederick Schauer’s New York Times obit described him as the “scholar who scrutinized free speech.” How true, and in so many ways. Schauer (1946-2024) was more than a scholar; he was a philosopher. He was a man with a Socratic bent, always pricking the conventional view of things. He reveled in “questioning the unquestionable or thinking the unthinkable.” Whether it was national security, morality, or venerable metaphors, Schauer could be counted on to pierce the conformist veil.

Though the man gave the word “prolific” new and invigorated meaning — he wrote more than a dozen books and published hundreds of articles — one work captures his mens rea better than all others. That work, published in 1982, was titled “Free Speech: A Philosophical Inquiry.” It is at once a work of political philosophy and a tract on freedom of speech and the press. It is also a profound essay on accepted constructs (e.g. our notion of “rights”) and the use and abuse of language (e.g., what counts as “speech,” let alone “free speech”). As Schauer ventured down the conceptual corridors, he moved from principles to explications to applications in his exploration of the meaning of free speech.

Schauer was skeptical of enticing turns of phrases or charming metaphors when used as first principles or normative ideals. He preferred the analytically turgid though precise over the literarily charming though imprecise. That mindset put him at odds with Holmes’ famous line in his dissent in Abrams v. United States (1919): “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Here is how Schauer replied to Holmes:

The survival theory of truth is alluringly uncomplicated; but as the basis for the principle of free speech it suffers from crippling weaknesses. Foremost among these weaknesses is that the argument begs the question. If truth is defined by reference to and in terms of the process, then why is the process of open discussion preferable to any other process, such as random selection for authoritarian fiat? Why is open discussion taken to be the only rational method of inquiry?

With analytically relentless pursuit, Schauer added:

The survival theory, in refusing to acknowledge independent criteria for truth, provides no guidance for preferring one method of decision to any other. The survival theory does not purport to demonstrate why open discussion leads to knowledge, because it rejects any objective test of truth. Moreover, this survival theory does not tell us why open discussion leads to more desirable results of any kind. Thus the theory prompts us to ask why we should prefer rational thinking to any other form of thinking. But then the theory defines rationality as willingness to participate in open discussion and receptiveness to a variety of ideas. The survival theory thereby skirts the entire question by assuming open inquiry as valuable a priori.

And then this by way of yet another body blow:

But we are still left with no criteria for evaluating whether this method of inquiry is better than any other. By taking open inquiry as sufficient ex hypothesi, the survival of consensus theory provides no assistance in answering the question of why free discussion should be preferred.

Some 33 years later, in a co-authored New York University Law Review article with Daniel E. Ho, Schauer resumed his attack on Holmes’ marketplace test of truth, this time by way of a rigorous empirical analysis. Their conclusion: “. . . [S]ocial science evidence provides, at best, mixed support for the metaphor’s veracity, and thus for the view that the positions will be accepted and which not. But even if establishing an open marketplace for ideas is unlikely to produce a gain in human knowledge, it may have other consequences . . . [and thereby in certain instances] belying the notion that the cure for bad speech is plainly more speech.”

Lest you think I am being unduly laudatory of Schauer as a free speech critic, I have had my own give-and-take with the good professor. Case in point: my criticisms of his cramped view of sexual expression as first expressed in my Harvard Law Review article with David Skover, and then expanded in our book titled “The Death of Discourse.”

In true form, Schauer offered guarded praise for my and Skover’s “The Trials of Lenny Bruce” in his Michigan Law Review book review essay — but only after he took a few theoretical strikes at our notion of what it means to be a “First Amendment hero.” He was also annoyed by our writing style. I only wish we had the opportunity to debate him and engage in that tumble of the minds that renders the free speech principle so illuminating.

To be sure, there is more to the man and his jurisprudential legacy. Consider, for example, this 2010 video where Schauer asked “Do lawyers think, and if so, how?”:

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Fred Schauer was a rara avis, one of the few real free speech philosophers. Make of the man what you will, but I will say this of him: Every generation of free speech thinkers should have an irritating Fred Schauer gadfly — if only to wipe the scum off the minds of conformists who bow to the party line.

Related

Book review: Mchangama on ‘Fearless Speech’ by Mary Anne Franks

Mary Anne Franks claims that her new book, Fearless Speech: Breaking Free from The First Amendment, “offers a different and bolder perspective on free speech that takes power, harm, and history seriously.” In this post (adapted from a thread on X) I provide a brief critique of Franks’ thesis and methodology.

[. . .]

Franks rightly points out that proponents of slavery and white supremacy systematically censored proponents of equality. But she conveniently omits that many of those whose voices were quashed were deeply committed to a universalist and principled conception of free speech.

[. . .]

In her book, Franks jumps from Whitney v. California (1927) to lynchings and KKK terror to the Brandenburg decision in 1969. She argues that SCOTUS upheld the conviction of Anita Whitney under the “bad tendency” test but moved to a “reckless speech” standard in order to overturn the conviction of a KKK leader who threatened “revengeance” against Blacks and Jews in Brandenburg v. Ohio (1969).

But along the way, she forgets to mention landmark cases often brought by civil rights activists expanding their right to speak and breathing new life into the First Amendment to the benefit of all Americans. In Herndon v. Lowry (1937), the U.S. Supreme Court overturned the Georgia Supreme Court’s upheld conviction of an African American who possessed Communist publications In NAACP v Alabama (1958), the court ruled Alabama violated freedom of speech and assembly by attempting to access membership lists of the NAACP. In Garner v. Louisiana (1961), the court ruled that Louisiana could not convict peaceful sit-in protestors under state's “disturbing the peace” laws. Edwards v. South Carolina (1963) found that the Constitution forbids state officials from forcing a crowd to disperse when legally marching for civil rights at the state house. And New York Times v Sullivan (1964) overturned the Alabama Supreme Court’s defamation decision against supporters of Martin Luther King, who placed an ad in the New York Times, limiting the ability of public officials to sue for defamation.

Related

SDO College of Law at Arizona State University holds anniversary symposium on Gitlow v. New York

On November 2, 2024, the Sandra Day O’Connor College of Law at Arizona State University and the Center of Constitutional Design held a one-day symposium to examine influential aspects of the Supreme Court’s 1925 decision in Gitlow v. New York, which produced a landmark dissenting opinion by Justice Oliver Wendell Holmes.

Keynote Address

Robert Post, “The Enigma of Gitlow: Positivism, Liberty, Democracy, and Freedom of Speech,” SSRN (Aug. 6, 2024)

Panel I: Free Speech and Deference to Legislative Judgments 

Panelists: Franciska Coleman, Paul Horwitz, Helen Norton

Panel II: Free Speech as a Suicide Pact

Panelists: Thomas Healy, Genevieve Lakier, Laura Weinrib

Panel III: The First Amendment and Incorporation 

Panelists: Amanda Shanor, James Stern, Ilan Wurman

Panel IV: Free Speech, Incitement, and Ideas

Panelists: Joseph Blocher, John Inazu, Ronald Krotoszynsk

New book on the First Amendment and intellectual freedom

The shared framework for all of these essays is the secular, individualist philosophy of Ayn Rand. Tara Smith is professor of philosophy at the University of Texas at Austin, Onkar Ghate is senior fellow at the Ayn Rand Institute, and Gregory Salmieri is senior scholar of philosophy in the Salem Center of the University of Texas at Austin. Situating their analyses within the broader intellectual landscape, these scholars take up the views of such historical figures as John Locke, Thomas Jefferson and John Stuart Mill, while also addressing contemporary clashes over issues ranging from speech on social media, “cancel culture,” and the implications of “religious exemptions” to the crucial difference between speech and action and the very vocabulary in which we discuss these issues, dissecting the exact meanings of “censorship” and “freedom,” among others.

Discussions of the First Amendment often focus on specific freedoms that the text cites, including religion, press, and assembly. But philosopher Tara Smith’s new book usefully reminds us that those particular freedoms — and many more that Smith and the other contributors examine — are united by a crucial principle: intellectual freedom. The book demonstrates that the free mind is indispensable for a free society.

— Nadine Strossen

Tara Smith’s masterful celebration of intellectual freedom is both subtle and forceful. She unhesitatingly carves out a place for herself as a warrior for freedom in the battles that Locke, Jefferson and Madison fought years ago and that require continued support today.

— Floyd Abrams

‘So to Speak’ podcast on AI and First Amendment

In this live recording of “So to Speak” at the First Amendment Lawyers Association meeting, Samir Jain, Andy Phillips, and Benjamin Wittes discuss the legal questions surrounding free speech and artificial intelligence.

Samir Jain is the vice president of policy at the Center for Democracy and Technology. Andy Phillips is the managing partner and co-founder at the law firm Meier Watkins Philips and Pusch. Benjamin Wittes is a senior fellow in governance studies at the Brookings Institution and co-founder and editor-in-chief of Lawfare.

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More in the news

2024-2025 SCOTUS term: Free expression and related cases

Cases decided

• Villarreal v. Alaniz (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. (2024) (per curiam))
• Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. (2024) (per curiam).”)

Review granted

Pending petitions

Petitions denied

Last scheduled FAN

FAN 445: “Let the uninhibited debate begin! – Lukianoff v. Franks?”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.