Redish, Martin H., Fear, Loathing, and the First Amendment: Optimistic Skepticism and the Theory of Free Expression (January 15, 2015). Ohio State Law Journal, Forthcoming; Northwestern Law & Econ Research Paper No. 15-02; Northwestern Public Law Research Paper No. 15-03. Available for download at SSRN: http://ssrn.com/abstract=2551482

“Communitarian free speech theories give out a siren call. They naturally appeal to most Americans because they reflect the assumptions of moral unity on a national level normally associated with theories of communitarianism. In reality, however, such theories are both invidious and dangerous, for two reasons. First, they ignore the well-established reality of interest group politics and self-promotion that has long marked our nation’s form of democracy. Second, in so doing these theories, either intentionally or unknowingly, provide an attractive cover for an attempt to impose a particular ideological perspective on a very diverse society.
To understand the proper role of free speech theory in American democracy, once initially needs to grasp — indeed, embrace — the politics of conflict and the clash of self-interests that inherently mark a pluralistic democracy. A constitutionally imposed principle of free expression flows not from some notion of a morally homogeneous society or a universal collaborative commitment to the pursuit of some mythical “common good,” but rather from recognition of the foundational role of liberal individualism in America’s adversary form of democracy. Of course, this does not imply that we live as individuals in a vacuum, rather than as part of a broader society. But that is exactly the point: We guarantee free expression for every member of society, regardless of our agreement with either the substance or motive for their speech, because we recognize from the outset that we all must work together, paradoxically, to make sure that we will still be able to continue competing with each other. The First Amendment, then, does for political battles what the Marquess of Queensberry Rules were intended to do for the sport of boxing: it imposes rules of behavior that temper and control the invidious impulses of the participants in the adversary conflicts. In this way, the First Amendment helps preserve the values of individual worth inherent in a commitment to liberal democratic thought while simultaneously protecting against the dangers of tyranny.“